Consistent with majority in Navitas, the Respondent's decision not to offer any further contract of employment (including as a Teacher) is not relevant to the question of whether there has been termination at the initiative of the employer.

Fair Work Commission|2024-09-26

The Applicant was not "dismissed" in accordance with the meaning of that term in section 386(1) because her employment did not end at the initiative of the employer. Rather, the employment ended by reason of the agreement between the parties which is evidenced in the employment contract.

Consistent with majority in Navitas, the Respondent's decision not to offer any further contract of employment (including as a Teacher) is not relevant to the question of whether there has been termination at the initiative of the employer.

[43] In any event, if the consideration above is wrong, the decision in Alouni-Roby of Justice Raper is authority for the proposition that the exemption in s.386(2)(a) applies to the type of contract that applied to the Applicant. Consistent with the reasoning of her Honour, as the Applicant's second contract was a time limited contract of the type contemplate as falling within the scope of s.386(2)(a) as per the consideration of Justice Raper, it follows that there was no dismissal within the meaning of the Act.

[44] The Applicant's employment ended on 3 May 2024 by way of agreement between the Applicant and Respondent. With respect to s.365(a), the Respondent the Applicant was not dismissed within the meaning of that term in s.386 of the Act. For the reasons stated above I am not satisfied that there was a termination at the initiative of the employer. Therefore, I'm not satisfied the Applicant was dismissed within the meaning of s.386 of the Act.

[45] The jurisdictional objection is upheld, and the application is dismissed.

[46] An order[16] to this effect is issued in conjunction with the publication of this decision.

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

[12] Isaac Howard v Falls Creek Ski Lift Pty Ltd T/A Falls Creek Ski Lift Group [2023] FWCFB 154.

[13] Digital Court Book at page 128-130.

Printed by authority of the Commonwealth Government Printer

Ms Muria Roberts v TasTAFE [2024] FWC 2586 (26 September 2024)

[29] I agree with those principles and will apply them here so far as they are relevant.
[30] However, I also note that a recent decision of Justice Raper in Alouni-Roby v National Rugby Leage Ltd [2024] FCA 12 (Alouni-Roby) at [97] considered the decision of the majority in Navitas, and found that s. 386(2)(a) applies to outer limit contracts which allow for early termination but only applies where the employee's employment has been terminated at the end of the specified period of time.

Ms Muria Roberts v TasTAFE [2024] FWC 2586