Fair Work Act 2009

s.394 - Unfair dismissal

Application for unfair dismissal remedy - jurisdictional objection - whether applicant was dismissed at employer's initiative - whether applicant was employed on a fixed-term contract - applicant not dismissed - jurisdictional objection upheld - application dismissed

• [1] Mr Greig McCracken was employed by the Department of Education (the Department) between 9 September 2024 and 30 June 2025.

• [2] Mr McCracken has filed an unfair dismissal application in the Commission under s 394 of the Fair Work Act 2009 (the Act).

• [3] The Department has raised a jurisdictional objection to the application on the basis that Mr McCracken was not dismissed.

• [4] The jurisdiction of the Commission in an application under s 394 is dependent on the applicant having been dismissed. In that regard, s 394(1) provides that "[a] person who has been dismissed may apply" for an unfair dismissal remedy. Consequently, it is necessary for the Commission to determine whether Mr McCracken was dismissed by the Department.

• [5] The Commission conducted a determinative conference on 25 September 2025 to receive evidence and submissions regarding the jurisdictional objection. A range of documents filed by the parties and assembled in a court book were admitted into evidence. Mr McCracken gave oral evidence on his own behalf. The Department did not call any witnesses. Prior to the determinative conference, both parties filed written submissions.

• [6] The facts of the matter can be shortly stated as follows.

• [7] Between March 2024 and 6 September 2024, Mr McCracken was engaged as a contractor by Hays, a labour hire agency, and placed in the Department performing duties as a Contract Manager in the School Cleaning Unit. The engagement with Hays was for a 6-month period and was due to expire on 6 September 2024.

• [8] On 9 July 2024, the Department advertised the position of Contract Manager - School Cleaning Unit. The position was described as "Fixed term -full time". The "Job Duration" was described as 12 months - 1/7/2024 - 30/6/2025". Applications for this position closed on 23 July 2024.

• [9] On 12 July 2025, Mr McCracken applied for the position advertised.

• [10] At about the time of seeing the advertisement, Mr McCracken spoke to an Operations Manager at the Department regarding the advertised position. During this conversation, Mr McCracken raised two matters about the advertisement. Firstly, the salary for the advertised position was less than the rate of pay he was receiving from Hays. Secondly, the duration of the employment was effectively less than 12 months, as the position was advertised on 9 July 2024, applications were open until 23 July 2024 and the duration of the advertised employment was expressed to expire on 30 June 2025. Self-evidently, as at 9 July 2025, if the duration of the advertised employment expired on 30 June 2024, the duration of the employment could not be 12 months. The discussion with the manager was principally about the remuneration in the advertised position. At the conclusion of that discussion, the applicant asked the manager if the dates of employment in the position would be adjusted to reflect a 12-month period of employment. The manager said that she would "look into it". However, nothing subsequently came of this discussion.

• [11] Mr McCracken was successful in his application for the position of Contract Manager - School Cleaning Unit.

• [12] On 6 September 2025, Mr McCracken received an email from the Department which set out an offer of employment for the position of Contract Manager (the offer email). The email included the following text:

Undertaking a specific task which is funded for a specific period

• [13] The duration of the employment set out in the offer email was a little short of 9 months.

• [14] On 6 September 2025, shortly after receiving the offer email, the applicant spoke to his manager at the Department. He asked the manager if there was a mistake in relation to the duration of the employment, as it was short few months. This was evidently an inquiry about the duration being about 9 months, when the initial job advertisement had been expressed as being for "12 months". The manager told Mr McCracken that there were issues in the Department in relation to budgets for contracts. Mr McCracken's evidence was that manager then told Mr McCracken that if he got past his probation period there shouldn't be issues obtaining ongoing employment in the Department.

• [15] On 6 September 2024, after the conversation with the manager, Mr McCracken accepted the offer of employment in the email. He did so by clicking onto a hyperlink in the offer email and completing the electronic acceptance requirements.

• [16] In accordance with the offer email, Mr McCracken was directly employed by the Department on a full-time basis commencing on 9 September 2025.

• [17] Subsequently, at some indeterminate time, Mr McCracken spoke with two colleagues one of whom was then a team leader and the other of whom subsequently became a team leader. Those colleagues relayed their own experience of obtaining more secure employment in the Victorian Public Service (VPS), which was to the effect that they had started in fixed term positions, moved around the VPS and eventually obtained ongoing positions. Mr McCracken gave evidence that those colleagues used the phrase getting a "foot in the door" to describe commencing in a fixed-term role as a pathway to ongoing employment in the VPS.

• [18] Mr McCracken gave evidence that he performed his job effectively and I accept that evidence.

• [19] In April and May 2025, Mr McCracken was an unsuccessful applicant for two fixed-term positions in the Department. Albeit unsuccessful, the Mr McCracken received positive feedback about his first application and was encouraged to apply for a further round of positions which were envisaged. In relation to the second application, Mr McCracken was told that he was unsuccessful in early June 2025. Mr McCracken was disappointed by the perfunctory feedback he received in relation to the second application, albeit it was not negative about Mr McCracken himself.

• [20] On 30 June 2025, Mr McCracken's employment came to an end. As is apparent in paragraph [12] above, this was the end date of employment set out in offer email.

• [21] Section 386 is entitled "Meaning of dismissed" and provides:

(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.

(2) However, a person has not been dismissed if:

(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; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part.

• [22] In Aboriginal Hostels Limited v Louise McCue, a Full Bench of the Commission made the following observations in respect of s 386(2)[1]:

[30] Section 386(2) ... sets out various circumstances in which a person is taken not to have been dismissed. It is not entirely clear whether s 386(2) identifies, for the avoidance of doubt, circumstances that are not intended to fall within the description of when a person has been "dismissed" in s 386(1) or to exclude circumstances that might otherwise be caught by that description. It is sufficient, for present purposes, to observe that, if one of the circumstances in s 386(2) exists, the person will not have been "dismissed", and it is unnecessary to consider whether the cessation of the person's employment might otherwise have given rise to a dismissal for the purposes of s 386(1) (at least unless the exception in s 386(3) is enlivened).

• [23] Section 386(2)(a) is of significance in the present matter. Section 386(2)(a) provides that a person has not been dismissed if the person was "employed under a contract for a specified period of time ... and the employment has terminated at the end of the period". Section 386(2)(a) operates such that where a contract of employment sets out a designated end date of the employment, and the employment terminates at the conclusion of a period identified by that end date, the employee has not been dismissed within the meaning of s 386.

• [24] I consider that this case falls precisely within the scope of s 386(2)(a). The terms and conditions of employment set out in the offer email, had a designated end date of 30 June 2025. On that date, Mr McCracken's employment terminated. By operation of s 386(2)(a), this cessation of Mr McCracken's employment did not constitute a dismissal within the meaning of s 386.

• [25] Mr McCracken made some contentions in his written submissions to the effect that he was dismissed, arising from one or more the following matters:

(a) misrepresentation as to the duration of the employment in the 9 July 2025 advertisement;

(b) that he did not freely enter into the contract of employment on 6 June 2025 as his engagement with Hays was due to expire that day and he accepted the offer due to economic duress;

(c) that he had a reasonable expectation of continuing employment because he was told that the employment dates would be amended, that he was told that his initial employment was a "foot in the door", and that good performance would guarantee ongoing employment; and

(d) that the contract of employment does not reflect the advertised or promised terms and that the true arrangement was a continuous relationship from March 2024.

• [26] I do not accept Mr McCracken's submissions as set out immediately above.

• [27] The position advertisement of 9 July 2024 did refer to a 12-month duration with the employment ending on 30 June 2025. As noted in paragraph [10] above, there was some internal inconsistency in the advertisement, which Mr McCracken had raised with an Operations Manager of the Department prior to applying for the position. However, any sense from the advertisement that the employment would be a for 12-month duration was superseded by the subsequent offer email of 6 September 2025. The offer email clearly specified a duration of employment just under 9 months. The applicant was cognisant of this more limited duration prior to accepting the offer of employment. This was evident from the discussion he had with his manager on 6 September 2025 referred to in paragraph [14] above, prior to his acceptance of the offer. Consequently, there is no basis to find that his entry into the contract of employment was procured by misrepresentation.

• [28] Furthermore, there is no basis to conclude that Mr McCracken was subject to duress which vitiated his acceptance of the offer as set out in the offer email. The fact that his engagement with Hays was due to expire on the day that he received the offer email from the Department, does not give rise to duress.

• [29] In addition, at no stage was Mr McCracken in fact given any "assurance" by the Department that the employment dates in his contract of employment would be amended or that good performance would "guarantee" ongoing employment. This is apparent from Mr McCracken's own account of the conversations he had with managers of the Department as set out in paragraphs [10] and [14] above, none of which have the character of an "assurance" or "guarantee".

• [30] Moreover, the "foot in the door" statements, referred to in paragraph [17] above, by his colleagues (one of whom was then a team leader), amounts to no more than colleagues, relaying their own experiences of obtaining more secure employment in the VPS. Those statements in no way constituted a representation on behalf of the Department, or any variation or formation of any legal relationship or obligation as between Mr McCracken and the Department.

• [31] Lastly, there is no basis for Mr McCracken's contention that the true terms of the employment with the Department constituted a continuous employment relationship commencing from March 2024. The true terms of the employment were set out in the offer email, which specified a commencement date of 9 September 2024 and expiry date of 30 June 2025. The terms of the employment were clearly for a fixed-term or specified period of time, expiring on 30 June 2025.

• [32] The ending of Mr McCracken's employment in the Department was clearly deeply disappointing for him. This is entirely understandable and I accept that he genuinely holds this sentiment. However, by operation of s 386(2)(a), Mr McCracken was not dismissed by the Department within the meaning of s 386. As Mr McCracken was not dismissed by the Department, his application under s 394 must fail for want of jurisdiction.

• [33] Consequently, I order that the application be dismissed.

A Thomas, Counsel, for the Respondent, instructed by H Reid and A Hill of the Respondent

[1] [2025] FWCFB 189 at [30].

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