s.365 - Application to deal with contraventions involving dismissal

Victorian Energy Safety Commission, Mr Tasos Koklas

Application to deal with contraventions involving dismissal-jurisdictional objection that the Applicant was not dismissed but that her employment ended upon expiry of maximum term contract-Applicant claims she was terminated at the initiative of the employer-consideration of application of section 333E (4) and (5) of the Fair Work Act and whether maximum term contract of no effect-jurisdictional objection upheld-application dismissed

• [1] This decision concerns an application made by Mrs Kim Ong (the Applicant) to deal with a general protections dispute involving an alleged dismissal under Part 3-1 of the Fair Work Act 2009 (Cth) (the Act). The Applicant contends that Mr Tasos Koklas and The Victorian Energy Safety Commission (the Respondents) contravened various provisions of Part 3-1 of the Act by dismissing her from her employment. The Respondents dispute that the Applicant was dismissed asserting that her employment ended with the effluxion of time and the expiry of her maximum term contract on 31 December 2024.

• [2] The Fair Work Commission (Commission) generally does not have a determinative function in relation to applications brought under s.365 of the Act unless the parties agree to the Commission arbitrating the matter. Rather, the Commission's role is to convene a conference and to issue a certificate to the Applicant, if it is satisfied that all reasonable efforts to resolve the dispute have been or are likely to be unsuccessful. However, where the Respondents deny that the Applicant was dismissed withing the meaning of s.386 of the Act and object to the application on this basis, the Commission is required first to determine whether the Applicant was in fact dismissed or not.[1]

• [3] The parties filed materials in accordance with the Directions[2]. The Applicant filed a witness statement which included submissions. The Respondents filed submissions and provided witness statements from Mr Koklas, the HR Business Partnering Manager, and Ms Joanne Matsoukas, the Head of People Experience and Human Resources. A hearing was held in person on 18 March 2025. The Respondents were represented by MinterEllison. I granted permission to appear to MinterEllison as I was satisfied that the matter was relatively complex, and that legal representation would enable the matter to proceed more efficiently. The Applicant was self-represented.

• [4] The evidence in this matter is largely uncontested however there is disputed evidence as it relates to the two roles performed by the Applicant during her employment and whether the work performed in those roles was the same or substantially similar work. The relevant evidence in this matter is as follows.

• [5] The Applicant commenced employment with the Victorian Energy Safety Commission (VESC) on 5 April 2023 on a maximum term basis in the role of People Services (HR) Business Partner to cover the position of an employee who was going on a secondment to another role. In this role, the Applicant was employed on two maximum term contracts for a period of approximately 1 year and 3 months as follows:

a) by letter dated 22 March 2023, the Applicant was contracted for the specified period 5 April 2023 to 6 March 2024 (First Maximum Term Contract); and

b) by letter dated 29 February 2024, the Applicant's contract was extended until 30 June 2024 (Second Maximum Term Contract).

• [6] At the conclusion of the Second Maximum Term Contract, the Applicant was offered a different role, Senior Human Resources (HR) Business Partner, on a temporary basis for the period 1 July 2024 to 31 December 2024 (Third Maximum Term Contract).

• [7] The Applicant performed the Senior HR Business Partner role between 1 July 2024 to 31 December 2024.

• [8] On 17 December 2024, the Applicant was advised that the VESC would not be offering her a further contract of employment and that her employment with the VESC would, therefore, cease upon the expiry of the Third Maximum Term Contract. The VESC determined to fill this role on an ongoing basis through a recruitment process. It is not in dispute that the Applicant was told she could participate in that recruitment process.

• [9] The Applicant's employment ended on 31 December. The question to be determined is whether or not her employment was terminated on the VESC's initiative or whether the circumstances are that the termination falls within the exception in s.386(2)(a) which excludes employment under a contract which has ended at the end of a specified period of time from being a "dismissal" within the meaning of the Act.

• [10] Section 365 of the Act establishes a jurisdictional precondition for a person to make an application to deal with a general protection claim involving a dismissal. Relevantly, s.365(a) of the Act requires that the person must have been 'dismissed'.

• [11] The word 'dismissed' is defined in s.12 of the Act by reference to s.386 of the Act:

a) Section 386(1) provides that a person has been dismissed if "the person's employment with his or her employer has been terminated on the employer's initiative"; and

b) Section 386(2)(a) provides that a person will not have been 'dismissed' "if the person was employed under a contract of employment for a specified period of time, 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".

• [12] The Respondents submit that the cessation of the Applicant's employment does not meet the above definition of a "dismissal" because:

a) the cessation of her employment occurred by reason of the effluxion of time rather than being at the initiative of the employer; and

b) the Third Maximum Term Contract was a contract within the meaning of s.386(2)(a) and the employment terminated at the end of the specified period.

• [13] However, the Applicant submits that she was dismissed within the meaning of the Act because she entered into the Second and Third Maximum Term Contracts with the understanding of future continued employment, similar to the circumstances in the decision upheld in Saeeid Khyayam v Navitas English T/A Navitas English [2017] FWCFB 4092 (Navitas).

• [14] The Applicant also submits that the application of s.333 of the Act to the facts in her case mean that the term of the Third Maximum Term Contract that provides that the contract terminates at the end of an identifiable period is of no effect and that it follows that her employment ended by way of dismissal.

• [15] In respect to the decision in Navitas, the Respondents submit that based on the reasoning of the Full Court of the Federal Court in Alouani-Roby v National Rugby League Ltd [2024] FCAFC 161 (Alouani-Roby), it is not necessary to look beyond the terms of the Third Maximum Term Contract. This is because the Full Court comprehensively addressed the question as to whether a person whose employment ceases upon the expiry of a fixed/maximum term contract has been dismissed. They submit that the key principles which form the Full Court's decision can be distilled into the following propositions:

• a) in the context of s.386(2)(a), a person will not have been 'dismissed' if the person was employed under a contract of employment for a specified period of time (including maximum term contracts which include the capacity to terminate an employee's employment on notice prior to the expiry of the specified term), and the employment has terminated at the end of the period[3];

• b) 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[4]; and

• c) where a contract of employment expires this brings both the contract and the employment relationship to an end and what an employee expects to occur at the expiry of his/her contract is irrelevant (except, perhaps, to the extent that the contract itself is considered to be a sham)[5].

• [16] The reasoning of the Full Court in Alouani-Roby was also recently adopted by a Full Bench of the Commission in Muria Roberts v TasTAFE [2025] FWCFB 3 (Muria Roberts). In that case, having accepted that the Applicant had been engaged under a contract for a specified period and that her employment had terminated at the end of that period, the Full Bench applied the Full Court's decision in Alouani-Roby as follows:

• a) 'The consequence is that a contract of employment which records a designated end date at which the employment will terminate is capable of being described as "a contract of employment for a specified period of time" even if the contract contains an unconditional or unqualified right to terminate during its term. If the employment of a person who is employed under such a contract terminates "at the end of the period", the person has not been "dismissed" for the purposes of s 386 of the Act by operation of the exception in s 386(2)(a). Among other things, that person cannot apply under s 365 for the Commission to deal with a dismissal dispute arising from the termination of their employment'[6]; and

• b) once it is accepted that the exception in s 386(2)(a) applies, it follows that the employee was, by definition, not dismissed for relevant purposes and it is unnecessary to consider any further contentions in relation to whether the employee was otherwise dismissed[7].

• [17] The Respondents submit that the reasoning of the Full Court in Alouani-Roby is binding on the Commission and the material circumstances that are the subject of this application are not distinguishable from those considered by either the Full Court in Alouani-Roby or the Full Bench in Muria Roberts.

• [18] I agree with those submissions. The more recent decision in Alouani-Roby, adopted by the Full Bench of the Commission in Muria Roberts mean that the Commission is bound to follow that authority, and not that of Navitas.

• [19] I will now turn to the requirements of s.333 of the Act.

• [20] Since 6 December 2023, the Act has included provisions that make it unlawful for an employer to enter a fixed term contract of employment (which, for this purpose, includes both 'fixed' and 'maximum' term contracts of employment) with an employee in contravention of certain limitations imposed in s.333E of the Act (Fixed Term Limitations).

• [21] Section 333G of the Act provides that if the Fixed Term Limitations are contravened, the term of the contract that purported to provide for its expiry at the specified date is taken to have no effect and the contract otherwise remains valid.

• [22] Therefore, if the Third Maximum Term Contract breached the Fixed Term Limitations, the Applicant's employment would not have ceased on the expiry of the specified term and the cessation of her employment would likely amount to a dismissal.

• [23] Sections 333E (1) to (3) of the Act make it unlawful to enter into a fixed term contract where:

a) the contract includes a term providing that the contract will terminate at the end of a period greater than two years;

b) the contract states that it may be extended or renewed for a period that, together with the original term of the contract, would exceed two years; or

1. the contract provides for an option or right to extend the contract more than once (even if the extensions are, cumulatively, less than two years).

• [24] It is not in dispute that the Third Maximum Term Contract does not breach any of these terms.

• [25] However, ss.333E (4) and (5) also make it unlawful to enter into successive fixed term contracts in certain circumstances as follows:

(4) This subsection applies if the contract comes into effect after another contract (the previous contract) of employment between the person and the employee in circumstances referred to in subsection (5).

(5) The circumstances for the purposes of subsection (4) are:

(a) the previous contract included a term that provided that the contract would terminate at the end of an identifiable period (whether or not the contract also includes other terms that provide for circumstances in which it may be terminated before the end of that period); and

(b) the previous contract was for the employee to perform the same, or substantially similar, work for the person as the employee is required to perform under the contract referred to in paragraph (1)(a) (the current contract); and

(c) there is substantial continuity of the employment relationship between the person and employee during the period between the previous contract terminating and the current contract coming into effect; and

(i) the sum of the period for which the previous contract was in effect and the identifiable period referred to in paragraph (1)(b) for the current contract is greater than 2 years;

(ii) the current contract contains an option for renewal or extension;

(iia) the previous contract contained an option for extension that has been exercised;

(iii) the previous contract came into effect after another contract (the initial contract) that satisfies the requirements of paragraphs (a) and (b) of this subsection and there was substantial continuity of the employment relationship between the person and the employee during the period between the initial contract terminating and the previous contract coming into effect.

• [26] Therefore, as the Applicant was not employed on successive contracts for a period of more than two years, and the contracts did not provide for an option or right to extend or renew the contract more than once, the Third Maximum Term Contract could only breach the Fixed Term Limitations if:

a) the Applicant has been performing the same, or substantially similar work across the First Maximum Term Contract, Second Maximum Term Contract and Third Maximum Term Contract; and

b) there is substantial continuity in the employment relationship across the First Maximum Term Contract, Second Maximum Term Contract and Third Maximum Term Contract.

• [27] The Respondents submit that the circumstances of the First Maximum Term Contract, Second Maximum Term Contract and Third Maximum Term Contract clearly demonstrate that Third Maximum Term Contract does not breach s.333E(4) and (5) of the Act because:

a) the First Maximum Term Contract and Second Maximum Contract were not for the same or substantially similar work to the work performed under the Third Maximum Term Contract; and

b) there is not substantial continuity of the employment relationship across the First Maximum Term Contract, Second Maximum Term and Third Maximum Term Contract.

• [28] It is not clear on what basis the Respondents submit that there was not substantial continuity of employment across the three contracts. In my view, it is apparent that there was substantial continuity of the employment relationship across all three contractual periods. All of the contracts abutted one another in time and there was no break of service. The Applicant agreed to the Second and Third Maximum Term Contracts while still engaged in her employment. I am satisfied on the evidence that there was a substantial continuity of the employment relationship for the relevant time.

• [29] However, the question as to whether the work performed under the First and Second Maximum Term Contracts is the same or substantially the same as the work under the Third Maximum Term Contract is less straight forward.

• [30] It is common ground that the work performed under the First Maximum Term Contract and the Second Maximum Term Contract was the same work. However, the Respondents maintain that the evidence shows that the work performed under the Third Maximum Term Contract was not the same or substantially similar to the work performed under the First and Second Maximum Term Contract. However, the Applicant claims that the evidence shows that the work performed under all three contracts was the same or substantially the same.

• [31] If the work performed under all three contracts is the same or substantially similar, then the Third Maximum Term Contract will contravene ss.333(E) and therefore by virtue of s.333G(1) the term of the Third Maximum Term Contract that provides that the contract will terminate at the end of an identifiable period is of no effect. In those circumstances the Applicant will have been dismissed within the meaning of s.386 of the Act. However, if the work under the Third Maximum Term Contract is not the same or substantially the same as that performed under the First and Second Maximum Term Contracts then the Applicant will not have been dismissed because of the operation of s.386(2)(a).

• [32] I will now turn to consider the evidence on that matter.

The Evidence as to the differences between the work

• [33] The Applicant commenced employment in March 2023 (under the First Maximum Term Contract) as People Services Business Partner. She reported to the HR Operations Manager and assigned to partner with the Acting Chief Operating Officer and the General Counsel. Shortly after the Applicant started employment there was a restructure in April 2023 which resulted in her reporting to a position titled Senior HR Business Partner. The Applicant's position also had a title change to HR Business Partner. A further restructure in October 2023 led to the creation of a Human Resources Business Partnering Manager Role with the Human Resources Business Partner role (the Applicant's role) reporting to it. However, as the newly created HR Business Partnering Manager role was vacant, the Applicant reported to the Head of People Experience and Human Resources. In February 2024 the Applicant was offered and accepted an extension to her contract (the Second Maximum Term Contract) to 30 June 2024. In May 2024 the previously vacant HR Business Partnering Manager role was filled by Mr Koklas (who was previously a Senior HR Business Partner).

• [34] In around June 2024, the Applicant claims that she was offered an extension to her contract in the role of Senior HR Business Partner to 31 December 2024. However, this is not accurate. While the Second Maximum Term Contract was an extension of the First Maximum Term Contract, the Third Maximum Term Contract was an offer for an internal appointment in the maximum term position of Senior HR Business Partner. Nevertheless, the key issue is whether the work performed in the Applicant's role as HR Business Partner was the same or substantially the same as the Senior HR Business Partner role into which she was placed under the Third Maximum Term Contract.

• [35] The Applicant provided rather generalised evidence to the effect that the roles are substantially similar. Her evidence is that the roles are similar in seniority and duties with both being mid-level roles with more junior and senior roles in the team. She submits that the position descriptions are similar and that the roles have a similar purpose. The Applicant claims that the differences between the roles "on paper" are not reflected in reality. That she was required to seek guidance and approval from senior roles in both positions as well as allocate tasks to junior team members. Further, that she continued to partner with the same executive leaders and there was no additional training.

• [36] The Respondents' witnesses provided a more detailed account of the differences between the roles. Ms Matsoukas set out the differences between the roles in some detail in her witness statement particularly in regard to the duties and accountabilities of the position[8]. In summary Ms Matsoukas' evidence is that the HR Business Partner role is more of a HR coordination and processing role operating in accordance with HR guidance, guidelines and procedures, performs tasks under direction and supervision and does not have strategic responsibilities or responsibility for the management of other employees. In comparison, the Senior HR Business Partner role is focussed on leading, management and accountability of up to two direct reports and provides strategic HR advice on workforce matters, takes a lead role on project delivery and deals with complex case management. Ms Matsoukas confirmed that while the Applicant occupied the Senior HR Business Partner role the HR Co-ordinator directly reported to the Applicant.[9] The Applicant when in the role of HR Business Partner reported to four different positions during her tenure.[10]

• [37] Mr Koklas, gave similar evidence as follows:

In my view, the HR Business Partner and Senior HR Business Partner roles are very different roles. The HR Business Partner role is focussed on administrative and processing work and is task orientated. Whereas, the Senior HR Business Partner role is a managerial role with the primary duties relating to people management, supervision, mentoring, leading projects and initiatives and providing strategic advice. The Senior HR Business Partner role also has greater accountability, with up to two direct reports.

Additionally, I confirm that the roles of HR Business Partner and Senior HR Business Partner:

(a) have different classifications under the Energy Safe Victoria Enterprise Agreement 2020, namely, ESV 3 for the HR Business Partner role and ESV 4 for the Senior HR Business Partner role;

(b) are not unique to Energy Safe Victoria, with HR Business Partner and Senior HR Business Partner roles characterised as separate roles in the broader Victorian Public Sector; and

• (c) have existed as separate roles at Energy Safe Victoria since approximately 2019, during which time they have always been substantially different roles.[11]

• [38] Mr Koklas gave evidence at the hearing that he has performed both the HR Business Partner and Senior HR Business Partner roles and attests that they are substantially different roles. Mr Koklas stated that, "the standard HR business partner role is really more of a co-ordination type role, very task orientated, operates under direct supervision does not have any responsibility for delegation of tasks outwards and it's more so of a processing-type role whereas the senior HR business partner position, that's a management role. It also has direct leadership over to up to two direct reports. There's also a project management and leadership component attached to it there. And then also in terms of the sophistication of the role, dealing with complex case matters in addition to providing strategic advice as well, at a much higher level."[12]

• [39] A document (R1) was tendered through Ms Matsoukas which set out a helpful comparison of the roles. While there is clearly some overlap between the roles (marked in yellow on the exhibit) the differences (marked in blue) are numerous and significant. They reflect that the role of Senior HR Business Partner is very much a leadership role, leading projects, coaching and mentoring other staff, managing change management processes, leading human resources administration and leading and managing people including selection, reviewing performance and driving the businesses people strategy. The differences in the roles set out in this document were largely unchallenged.[13] The Applicant conceded during cross examination that while in the Senior HR Business Partner Role: she had one employee who reported directly to her; that the Senior HR Business Partner had a higher classification under the enterprise agreement and a significantly higher salary; and that the position descriptions included fundamentally different responsibility.[14] The Applicant would not concede that a significant proportion of the key accountabilities in the position descriptions are fundamentally different.[15] While I understand that the Applicant was reluctant to make that concession, the evidence is clear that they are fundamentally different as is clear between the two position descriptions.

• [40] The Applicant referred to the decision of her Honour Justice Katzman in Community and Public Sector Union, NSW Branch v Northcott Supported Living Limited [2021] FCA 8 (CPSU v Northcott) in support of the interpretation of the meaning of the words "the same or substantially the same". While the interpretation of those words by her Honour were in respect to where they appear in s.311 of the Act which deals with transfer of business and transferring work (which must be the same or substantially the same work), I agree with the Applicant that the construction of the term is relevant to the consideration here and the Respondent agreed.

• [41] Her Honours interpretation was as follows:

I conclude that, in the balance between the objects in s 309, the primary purpose of s 311 is to protect the terms and conditions of employment under the relevant industrial instruments and prevent their avoidance in the event of a transfer of business to "an associated entity". Having regard to that purpose, a narrow approach to the meaning of "work" is not called for.

"Work" in the context of s 311 refers to the nature or character of the employment, rather than the particular duties the employee was undertaking or will or may be called upon to undertake. It is abundantly clear from the Explanatory Memorandum that that was the legislative intention. This interpretation serves the legislative purpose. As a matter of principle, focusing on the substance of the work, rather than the particular duties that may or may not be required or performed at any particular time, would not unduly interfere with the interests of employers in running their enterprises efficiently.

It follows that I accept the CPSU's submissions that the work performed by a transferring employee for the new employer may be the same, or substantially the same, even if some new duties are undertaken for the new employer, some duties formerly undertaken are no longer required, or the composition of the working day has changed, as long as the nature or character of the work remains the same or substantially the same.

It defies common sense to think that a different construction was intended. After all, as the CPSU argued, duties can (and often do) change during the life of a single contract of employment without altering the fundamental nature of the work. Northcott itself recognised as much in its position descriptions, noting that the list of duties was "indicative only" and "subject to change".[16]

• [42] Applying those principles here, it is clear on the evidence that the nature or character of the work has not remained the same or substantially the same. The work that the Applicant performed under the Third Maximum Term Contract was a more senior role requiring leadership and management responsibilities, as set out earlier. This stands in contrast to the role under the First and Second Maximum Term Contracts which were far more administrative and subject to more direction.

• [43] In contrast, in CPSU v Northcott, the consideration involved a comparison of the work of "team leaders" and "service co-ordinators" in a disability service provider and whether their work was the same or substantially the same. The evidence in that case was that both positions had the same administrative and management responsibilities, both positions were the only supervisory employees working in those homes, both conducted team meetings, both supervised casual staff, both prepared rosters. Essentially, both roles involved substantially the same level of supervisory and administrative work.

• [44] This is not the case here, where on the evidence there is a substantial difference between the roles particularly in respect to levels of leadership and responsibility. There is a substantial difference between the position descriptions, as set out above. I am also satisfied that the differences were real and not just differences on paper. I prefer the detailed and cogent evidence of, in particular, Mr Koklas on that point over the more vague assertions from the Applicant, "...that the operation of the actual role may not be truly reflected in the position descriptions provided."[17]

• [45] Having regard to the evidence, I am not satisfied that the work performed by the Applicant under the Third Maximum Term Contract as a Senior HR Business Partner is not the same or substantially the same work as she performed as a HR Business Partner under the First and Second Maximum Term Contracts.

• [46] As the role performed by the Applicant during the Third Maximum Term Contract cannot be considered the same or substantially similar to the role she performed during the First and Second Maximum Term Contract, I'm not satisfied that the contracts are in breach of s.333E(4) and (5) of the Act. The Applicant's employment came to end at the cessation of the Third Maximum Term Contract on 31 December 2024.

• [47] For the reasons stated above I am not satisfied that there was a termination at the initiative of the employer as the Applicant was employed under a contract of employment for a specified period of time, and the employment terminated at the end of the period. The end of the Applicant's employment fell within the exception to the definition of dismissal set out in s.386(2) (a) of the Act. Therefore, I'm not satisfied the Applicant was dismissed within the meaning of s.386 of the Act.

• [48] The jurisdictional objection is upheld, and the application is dismissed. An order[18] to this effect will be issued in conjunction with this decision.

[1] See Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 and Ahmad v MPA Engineering Pty Ltd [2020] FWCFB 5365).

[2] Digital Hearing Book (DHB) at page 281.

[16] CPSU v Northcott, [161]-[164].

[18] PR785738.

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