Fatima Benel v Legal Aid Commission of NSW

Consideration

The respondent's primary submission, particularly when has regard to the reliance on the case of York, that there was in existence what is usually referred to as an "outer limits contract", i.e. they contain express terms which provide that the contract terminates and also permits termination prior to this date.
In York, Commissioner Stanton was dealing with an outer limits contract which was not renewed. The Commissioner after considering and adopting the case of Sarah Lunn v Department of Justice [2006] AIRC 756, a decision of a Full Bench of the Australian Industrial Relations Commission, determined that there was no dismissal for the purposes of the Act as the contract terminated by the effluxion of time.
The issue of outer limits contracts was also dealt with by a Full Bench of the Fair Work Commission in Khayam v Navitas English Pty LTD t/as Navitas English [2017] FWCFB 5162 ("Navitas") which was recently applied by the Chief Commissioner in Naulty v Shoalhaven City Council [2021] NSWIRComm 1012.
In Navitas, at 75(4) it was determined that failure to renew an outer limit contract could constitute a dismissal for the purpose of the Fair Work Act 2009, if there was genuine agreement between the employer and employee as to the employment not continuing beyond the time limit. The Full Bench also determined that there were a number of vitiating factors that may effect this, which they list at 75(5): 5) In some cases it will be necessary to go further than just examining the terms of any contract in which the parties have ostensibly agreed to terminate the employment relationship at a particular time. It is not necessary or appropriate that we attempt to identify exhaustively all relevant matters, but the authorities to which we have earlier referred indicate that the following are likely to be relevant and may in some cases be determinative: (a) The time-limited contract itself may be vitiated by one of the recognised categories by which the law excuses parties from performance of a contract. The categories potentially relevant in an employment context include the following: the employee entered into the contract as a result of misrepresentation or misleading conduct by the employer; the employee entered into the contract as a result of a serious mistake about its contents or subject matter; there has been unconscionable conduct associated with the making of the contract, which may relevantly include that the employer took advantage of a disability affecting the employee such as lack of education, lack of information, lack of independent advice or illiteracy; the employment contract was entered into by the employee under duress or coercion (which might include the types of coercion prohibited in ss 343(1)(a), 348 and 355) resulting from illegitimate pressure on the part of the employer; the employee lacked the legal capacity to make the contract; or the contract was a sham in the sense that it was not intended by the parties to give legal effect to its apparent terms or in the broader sense dealt with in Pt 3-1 Div 6 of the FW Act. If any of the above applies there will be no legally effective time-limit on the employment (Fisher). (b) The time-limited employment contract may be illegal or contrary to public policy (for example, it contains relevantly objectionable terms as defined in s 12 of the FW Act or has the purpose of frustrating the policy or operation of the FW Act or preventing access to the Commission's unfair dismissal jurisdiction[82]). Whether the employment was constituted by successive short term contracts or the use of time-limited contracts was appropriate in the relevant field of employment may be some of the considerations relevant to an examination of the employer's purpose for entering into such contracts (D'Lima/Fisher). (c) The contract may have been varied, replaced or abandoned by way of a separate agreement, whether in writing and/or orally, such that its ostensible time limit no longer applies (Fisher). (d) The employment contract may not be limited to the terms of a written document and may, for example, be one of a series of standard-form contracts which operated for administrative convenience and did not represent the reality or the totality of the terms of the employment relationship (Fisher/D'Lima). (e) During the term of the employment relationship the employer may have engaged in conduct or made representations (for example, representing to the employee that the employment will continue subject to conduct and performance notwithstanding a contractual time limit on the employment) which provide a proper legal foundation to prevent the employer from relying upon the terms of the contract as the means by which the employment relationship has been terminated (Fisher). (f) The terms of the contract time-limiting the employment may be inconsistent with the terms of an award or enterprise agreement given effect by the FW Act which prohibit or regulate fixed-term employment, in which case the terms of the award or agreement will prevail over the contract (Fisher).
The respondent in oral submissions put that the period of 1 October 2021 to 29 October 2029 constituted a third contract, but unfortunately adduced little by way of evidence to advance what the terms of that purported contract were.
The only evidence in relation to the special leave, was provided by Ms Macmillan. This was that the respondent had agreed with the applicant in late August 2021, that the applicants' employment would be extended and she was placed on special leave until 29 October 2021.
The applicant in the hearing provided further detail in relation the extension of the employment and stated that initially there was provision of 2 weeks of special leave which was then then extended for a further period of one month until 29 October 2021. The applicant's recollection of the one month extension was set out in the following passage of transcript: APPLICANT: The day that I was told that the contract would be extended for one month, the people that were in that conversation I remember because I took my children to the park, it was during lockdown. It was Monique, the Deputy CEO of Legal Aid and Yamil - gosh, I've forgotten the surname. Yamil Zam, or something like that. She's the head of HR and I was sitting in the park and both of their faces were on screen and they are the ones directly that told me and perhaps you can get instructions from them directly, I don't know but they're the ones that told me that I'd be extended for another month until the investigation was over……
The evidence of both the applicant and the respondent is consistent with the June Contract being extended and not that there had been a third contract of employment for the period of 1 October 2021 to 29 October 2021 as submitted by the respondent.
The extension of the June Contract is evidence of genuine agreement that the applicant's employment would end on 29 October 2021 and conversely the evidence does not disclose any of the vitiating factors identified in Navitas.
For the above reasons I find that there was no dismissal for the purposes of the Act and accordingly I find for the respondent on the Motion.

At a glance

Court

Decision date

Source

Judgment (9 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (4)