s.365 - General protections

Application to deal with contraventions involving dismissal - jurisdictional objection - no dismissal - fixed term contract expired - whether subsequent conduct extended the contract - mutually agreed variation to contract found to exist consistent with expressed terms - jurisdictional objection dismissed

• [1] Mr Hari Dhakal (the Applicant/Dhakal) lodged a general protections application involving dismissal with the Fair Work Commission (the Commission) on 6 April 2025. The Applicant claimed that adverse action was taken against him by Co.As.It. Community Services Ltd (the Respondent/CoAsIt) under ss.340, 341, 343, and 351 of the Fair Work Act 2009 (Cth) (the Act).

• [2] The Respondent raised a jurisdictional objection that the Applicant was not dismissed. For the Applicant to be eligible to make a claim under s.365 of the Act, the Applicant will need to establish that he was dismissed in accordance with the definition in s.386 of the Act.

• [3] Following the Full Court of the Federal Court decision of Coles Supply Chain Pty Ltd v Milford,[1] the Commission must determine whether the Applicant was dismissed before it can exercise powers under s.368 of the Act to deal with a dispute about whether the Applicant was dismissed in contravention of the general protections provision.

• [4] In respect of the matters that the Commission must determine in the jurisdictional objection, the parties agreed that there were no contested issues of fact and instead the only contested issues that remain, were issues of law. On that basis the parties agreed that the matter could be determined on the papers.

• [5] Section 365 of the Act requires a person to be dismissed to be eligible to make a General Protections application involving dismissal.

• [6] Section 386(1) of the Act relevantly provides that 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.

• [7] Section 386(2) goes on to say:

(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; (emphasis added)

• [8] CoAsIt is a business that provides general community support services pursuant to a range of funded programs including the National Disability Insurance Scheme (NDIS), the Queensland Community Support Scheme (QCSS), Home Care Packages (HCPO) and the Commonwealth Home Support Program (AHSP). Mr Dhakal was initially engaged as a Rostering Officer on a fixed term contract, dated 9 May 2022 that provided for employment to commence on 31 May 2022 and had an end date of 30 March 2025. The contract noted that the period of employment was in line with a subclass 485 Temporary Graduate Visa and noted that any changes to the Visa dates and/or conditions would incur a review of the employment agreement.[2] Mr Dhakal signed the letter of employment on 10 May 2022.

• [9] Mr Dhakal set out his case in his submissions. I briefly note that Mr Dhakal relevantly submitted that:

• In June 2022, he provided CoAsIt with confirmation of his permanent residency status;

• • On 11 January 2023, CoAsIt provided Mr Dhakal with a letter congratulating him on the successful completion of his probationary period and stating that therefore he has been appointed to "our permanent staff in the position of Rostering Officer".[3] This letter requested that Mr Dhakal should sign it in acknowledgement and return it, which he did on 16 January 2023. The letter from the CEO, Dina Ranieri, ends by wishing Mr Dhakal "a long and mutually rewarding career with CoAsIt";[4]

• • The internal TRACCS system was updated to reflect an employment end date of 2050;[5]

• • Mr Dhakal claims that after he raised concerns about workplace rights and roster changes, the TRACCS system was again updated with an end date of December 2025[6] however he also stated that in late 2023 when he was applying for a home loan, he had requested an updated contract reflecting his "new employment status" and was referred to the CEO who said that this would be reviewed closer to March 2024 and he states that the TRACCS system was then updated to reflect an end date of December 2025;[7]

• • He verbally raised concerns about unsafe roster changes and their impact on his health and caring responsibilities with management on 20 February 2025;[8]

• • On 21 February 2025, Mr Dhakal received an email from his CEO advising him that his employment would end on 30 March 2025 citing the original fixed term contract;[9]

• • On 25 February 2024 Mr Dhakal lodged a formal complaint about his manager and a range of issues;[10] and

• • Mr Dhakal took sick leave from 26 February 2025 to 7 March 2025 and then parental leave from 7 March 2025 to 28 March 2025.[11]

• [10] In considering the material before me I find that:

• • The screen shots from the TRACCs system before the Commission consistently show an expiry date of Agreement of Employment being 1 December 2025. There is no evidence that has been put before the Commission, beyond the assertions made, demonstrating any change. In any event, I don't believe such conduct would alter the terms agreed;[12] and

• • The email sent to Mr Dhakal on 21 February 2025 confirming that his employment was ending on 30 March 2025, in accordance with his employment contract, was prompted by Mr Dhakal's email on 20 February 2025, to his Operations Manager and his CEO, seeking confirmation whether his employment contract ending on 30 March 2025 would be reviewed.[13] In any event, I don't believe it meets the thresholds set out in Rossato which I will discuss further on.[14]

• [11] The Respondent set out their case in their submissions, I briefly note that the Respondent relevantly submitted that:

• • The Applicant wrote to the Operations Manager of CoAsIt on 20 February 2025 noting that as per his previous contract, his employment will be ending on 30 March 2025 and asking for a "review if I will be getting another one";[15] and

• • The new CEO, Ms Tanina Sofia responded on 21 February confirming that in accordance with the employment agreement signed and dated by Mr Dhakal on 10 May 2022, his employment would end on 30 March 2025.[16]

• [12] The Respondent also set out in their submissions, the relevant law, which I will step through for completeness:

• • In WorkPac Pty Ltd v Rossato,[17] the High Court found that:

".. where there are express terms of the contract between the parties, they must be given effect unless they are contrary to statute..."[18]

• • The proper construction of a written contract is a question of law;[19]

• Further, the Respondent submitted that the High Court in Rossato went on to discuss the impact of post contractual conduct in interpreting the terms of a contract:

"62. To insist upon binding contractual promises as reliable indicators of the true character of the employment relationship is to recognise that it is the function of the courts to enforce legal obligations, not to act as an industrial arbiter whose function is to synthesise a new concord out of industrial differences. That it is no part of the judicial function to reshape or recast a contractual relationship in order to reflect a quasi-legislative judgment as to the just settlement of an industrial dispute has been emphatically the case in Australia at the federal level since the Boilermakers Case.[20]

63. To insist that nothing less than binding contractual terms are apt to characterise the legal relationship between employer and employee is also necessary in order to avoid the descent into the obscurantism that would accompany acceptance of an invitation to enforce "something more than an expectation" but less than a contractual obligation. It is no part of the judicial function in relation to the construction of contracts to strain language and legal concepts in order to moderate a perceived unfairness resulting from a disparity in bargaining power between the the parties so as to adjust their bargain. It has rightly been said that it is not a legitimate role for a court to force upon the words of the parties' bargain "a meaning which they cannot fairly bear [to] substitute for the bargain actually made one which the court believes could better have been made".[21] Even the recognised doctrines of unconscionability or undue influence do not support such a course; and in any event, neither Mr Rossato, nor any of the interveners, sought to suggest that the doctrines of unconscionability or undue influence had any part to play in the resolution of the present dispute.

64. Notwithstanding the express preference of White J for a contractual analysis that establishes the parties' enforceable rights and duties at the commencement of the employment, his Honour reasoned to his conclusion by reference to notions of "underlying"[22] and "unspoken mutual undertaking[s]",[23] shared contemplation[s]",[24] "indication[s]"[25] and "expectation[s]".[26] None of these notions amounted to express contractual terms; nor would any have satisfied the test for the implication of a term.[27] The deployment of these notions signals a departure from orthodox legal analysis.

65. Three additional points may be made here. First, while mutual undertakings may not always be express, where there are express terms of the contract between the parties, they must be given effect unless they are contrary to statute. Secondly, if the mutual undertakings are said to be implied in what has been agreed, they cannot be inconsistent with the express terms of the contract.[28] Thirdly, if the mutual undertakings are to be inferred from conduct, then they may take effect as contractual variations. It is because contracts, whether as originally agreed or as varied, create binding obligations that they constitute "firm advance commitments".

66. In light of this discussion, it should now be understood that in approaching the characterisation exercise by reference to "[t]he conduct of the parties to the employment relationship and the real substance, practical reality and true nature of that relationship",[29] the Full Court in Skene strayed from the orthodox path.

67. None of the authorities cited by the Full Court in Skene[30] in support of its approach to the characterisation exercise were cases where the parties had committed the terms of the employment relationship to a written contract and thereafter adhered to those terms. In such a case, it is to those terms that one must look to determine the character of the employment relationship. WorkPac's submission that Skene was wrongly decided in this respect should be

accepted." (citations in original) (emphasis added).

• • In Alouani-Roby v National Rugby League Ltd,[31] the Full Federal Court in considering s 386 of the Act said the following:

"61. ... Section 386 of the FW Act is concerned with the termination of an employee's employment at his or her employer's initiative: that is, with the mechanics of how employment is brought to an end by an employer.

62. Mr Alouani-Roby maintains that he had a legitimate expectation that his employment relationship with the NRL would continue beyond the expiry of his contract in November 2020. If, by that, he means that he legitimately expected that he would be offered a new contract, then perhaps that might be accepted. Nonetheless, by its nature, employment is a product of contract: it subsists in the acceptance of an offer to serve in return for agreed consideration. Termination of employment, then, necessarily requires the termination of a contract. There can be no expectation of an ongoing employment relationship without an ongoing employment contract.

63. What Mr Alouani-Roby expected would occur at the expiry of his contract is irrelevant (excepting, perhaps, to the extent that it might reflect that his employment contract was a sham transaction not to be given effect according to its terms). At least for present purposes, distinctions between employment relationships and employment contracts are artificial: the termination of an employment relationship and the termination of an employment contract are the same thing. Employment relationships can be created, changed and brought to an end; but (leaving aside possible exceptions involving repudiatory breach, as to which see Visscher v Giudice [2009] HCA 34; (2009) 239 CLR 361) only ever upon the execution, variation or termination of an employment contract. That being so, the reference in s 386(1)(a) of the FW Act to "the person's employment with his or her employer [having been] terminated" can only be understood as a reference to the person's contract of employment being brought to an end (or, perhaps in some cases, repudiated).

64. As much follows (to the extent that it was ever in doubt) from the judgment of the High Court in WorkPac Pty Ltd v Rossato (2021) 271 CLR 456 ("Rossato"). There, it was suggested that the nature of an employee's employment (the issue in that case being whether Mr Rossato was employed on a casual basis) fell to be determined having regard to "...the real substance, practical reality and true nature of the employment relationship..." (citing WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 536, 576 [180]; Tracey, Bromberg and Rangiah JJ). That appeal to notions of "practical reality" was given short shrift: the plurality (Kiefel CJ, Keane, Gordon, Edelman, Steward and Gleeson JJ) explained (at 478 [61]) that, when identifying the nature of employment, "[s]ome amorphous, innominate hope or expectation falling short of a binding promise enforceable by the courts is not sufficient". Instead, the court was concerned to define the legal relationship there in issue by reference to the binding contractual terms upon which the parties had agreed, warning that anything less risked a "...descent into the obscurantism that would accompany acceptance of an invitation to enforce 'something more than an expectation' but less than a contractual obligation": Rossato, 479 [63] (Kiefel CJ, Keane, Gordon, Edelman, Steward and Gleeson JJ). Their Honours went further, explaining that reliance upon abstract notions such as "shared 'contemplations'" and "expectations" would "...[signal] a departure from orthodox legal analysis": Rossato, 479 [64] (Kiefel CJ, Keane, Gordon, Edelman, Steward and Gleeson JJ).

65. Presently, of course, it has never been doubted that Mr Alouani-Roby's contract of employment terminated upon the expiry of its agreed term. It was not argued in the Commission that that contract was apt to be disregarded as an ineffectual record of the contractual bargain that Mr Alouani-Roby struck with the NRL. Indeed, there has never been any suggestion (including before the primary judge) that it was anything other than an agreement genuinely struck (albeit that Mr Alouani-Roby maintains that it did not, of itself, presuppose that his employment relationship with the NRL would terminate upon its expiry)." (emphasis added)

• [13] The Respondent submits that on this basis, Mr Dhakal's expectations that he would be offered a further contract are not relevant. However, Mr Dhakal's situation can be distinguished from Alouani. Unlike Mr Alouani, Mr Dhakal has a basis upon which he can claim an implied variation to his contract exists.[32] It is the letter sent to him by CoAsIt on 11 January 2023 (Contract Variation/the Letter).[33]

"Congratulations, we wish to advise you that you have successfully completed your probationary period with Co.As.It Community Services and therefore have been appointed to our permanent staff in the position of Rostering Officer.

Please sign below and return to our office, in acknowledgement.

We wish you a long and mutually rewarding career with Co.As.It. Community Services.

Signed:________________________________ Date: ___________ "

• [15] This letter tells Mr Dhakal that he is "appointed to our permanent staff".[34] This is an offer and one that requested his acceptance, which he gave in signing it on 16 January 2023.[35] The letter goes on to wish Mr Dhakal "a long and mutually rewarding career."[36] The necessary tenets of a contract variation are made.[37] CoAsIt made the offer which Mr Dhakal accepted. CoAsIt lawfully continued to pay Mr Dhakal and the agreement was set out in a manner clearly intended to be binding on the parties and that much is clear as a consequence of Mr Dhakal being asked to sign and return it.[38]

• [16] The Respondent then goes on to submit that none of the material relied on by Mr Dhakal would support a finding that there were any implied undertakings that his employment contract would extend past 30 March 2025.[39] I disagree with this submission for the reasons set out in the preceding paragraph.

• [17] Further the Respondent submits that, in any event that such an undertaking would be inconsistent with the express terms of the contract.[40] However this is not so. The employment contract provided for a 6-month probation period.[41] The Letter is not inconsistent with that term. Further, the employment contract provides at clause 20.3 that if there are any changes to Mr Dhakal's "Visa dates and/or conditions" that it will result in incurring "a review of your employment agreement".[42] It is uncontested that Mr Dhakal was granted permanent residency on 1 June 2022,[43] and that he immediately provided the updated visa to CoAsIt,[44] prior to receiving the Letter. On that basis the Letter is entirely consistent with the express terms of the contract.

• [18] I note the Respondent's further submissions that Mr Dhakal's letter on 20 February 2025 to CoAsIt, enquiring about the end of his contract and whether he will be getting another one should be taken as inferring there was no evidence of any mutual undertaking. There are many alternate explanations for Mr Dhakal's enquiry, however, I do not accept that an enquiry about a contract term can overturn the existence of the contract variation. It is my view that this enquiry falls within the conduct expressed in Rossato as not being sufficient to displace the terms of a contract.[45] On that basis the exception in s.386(2) is not made out.

• [19] While it may be that some action on the part of the employer is intended to bring the employment to an end, it is not necessary to show the employer held that intention.[46] It is sufficient that the employer's conduct, would, on any reasonable view, be likely to bring the employment relationship to an end.[47]

• [20] All of the circumstances - including the conduct of both the employer and employee - must be examined.[48] In other words, it must be shown that "the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.[49]

• [21] It is clear on the evidence that with the exception at s.386(2) ruled out, the employment came to an end as a direct consequence of actions by the employer and therefore the termination occurred at the initiative of the employer.

• [22] Mr Dhakal was dismissed at the initiative of CoAsIt, with his employment coming to an end on 30 March 2025 in accordance with s.386(1) of the Act. The matter will be programmed for conference in accordance with s.368 of the Act.

[1] [2020] FCAFC 152.

[12] DCB p.51 and p.77; see also WorkPac Pty Ltd v Rossato (2021) 271 CLR 456 (Rossato) at [65].

[19] Baiada Poultry Pty Ltd v The Queen (2011) 203 IR 396 at [33] (per Nettle JA) citing with approval Life Insurance Co of

Australia Ltd v Phillips [1925] HCA 18; (1925) 36 CLR 60 at 78; Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 at 395;

see also Chitty on Contracts, 29th ed, Vol 1, General Principles, [12-045]-[12-046]; Greig & Davis, The Law of Contract,

[20] R v Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10; (1956) 94 CLR 254. See also Dietrich v The Queen (1992) 177

CLR 292 at 320. In relation to the position at State level, see Fish v Solution 6 Holdings Ltd [2006] HCA 22; (2006) 225 CLR 180.

[21] Charter Reinsurance Co Ltd v Fagan [1997] AC 313 at 388.

[22] Rossato [2020] FCAFC 84; (2020) 278 FCR 179 at [447].

[23] Ibid at [572]. See also [542], [549], [609].

[24] Ibid at [548]. See also [547].

[26] Ibid at [543], [594]; cf [448].

[27] Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 453; Jarratt v Commissioner of Police (NSW) (2005) 224 CLR

44 at [78]. Compare Breen v Williams [1995] HCA 63; (1996) 186 CLR 71 at 80, 90-92, 102-103, 123-124.

[28] BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at [282]-[283].

[29] WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 536 (Skene) at [180].

[31] Alouani-Roby v National Rugby League Ltd [2024] FCAFC 161 (Alouani) at [61] to [65].

[46] Ibid; see also Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161; see also O'Meara v Stanley Works Pty Ltd [2006] AIRC 496 (11 August 2006); Mohazab v Dick Smith Electronics (No 2)(1995) 62 IR 200.

[47] Rheinberger v Huxley Marketing Pty Limited ( 1996) 67 IR 154, 160-161 cited in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941at [31].

[48] Whirisky v DivaT Home Care [2021] FWC 650at [77].

[49] Mohazab v Dick Smith Electronics (No 2)(1995) 62 IR 200 and Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[ 2017] FWCFB 3941at [28].

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