s.365 - Application to deal with contraventions involving dismissal

Application to deal with a dismissal dispute under s365 of the Act - jurisdictional objection that there was no dismissal - jurisdictional objection upheld - Application dismissed

• [1] On 11 April 2025, Ms Suzanne Pate made a general protections application involving dismissal to the Fair Work Commission, pursuant to s.365 of the Fair Work Act 2009 (the Act). The Respondent to this application is WomenCAN Australasia Ltd (Respondent). Section 365 of the Act provides that a person is only able to apply for the Commission to deal with a dispute if the person "has been dismissed" and it is alleged that the dismissal involved a contravention of Part 3-1 of the Act. The Respondent has raised a jurisdictional objection to Ms Pate's application on the basis that Ms Pate was not dismissed.

• [2] Ms Pate and Mr Andrew Maher of CIE Legal appeared at the hearing, the Respondent having been granted permission to be represented by Mr Maher pursuant to s.596 of the Act. Evidence for the Respondent was adduced from Ms Heather Saunders, Chief Executive Offer, and Ms Ann Smith, the Respondent's previous interim Chief Executive Offer. Ms Pate testified and adduced evidence from Ms Mikaela Stafrace, founder and former Chief Executive Offer of the Respondent.

• [3] On 28 June 2024, Ms Pate signed an employment agreement with the Respondent (Employment Agreement) in the position of Transport Project Lead with a commencement date of 8 July 2024. The Employment Agreement contained terms which outlined:

1. Ordinary hours of work of 7.6 hours per day from Monday to Thursday plus reasonable additional hours as required (Clause 3.2 and Item 5 of Schedule 1);

1. A salary of $85,000 per annum pro rata plus superannuation (Item 6 of Schedule 1);

1. A contract period of 6 months ending on 6 December 2024 (Item 7 of Schedule 1);

1. That ongoing employment was subject to the satisfactory completion of a 6-week probationary period, during which mutual suitability would be monitored and "ongoing permanent employment being confirmed and determined" by the Respondent at its completion (Clause 4.1 and Item 8 of Schedule 1);

1. That the employment could be terminated during the probationary period by either party giving the other one week's notice in writing and otherwise upon the giving of notice to the other party in accordance with the Act (Clause 4.2 and Clause 13.1);

• [4] Ms Pate said that Ms Stafrace returned from leave a few weeks after her employment commenced and promoted her to the position of Business Development Manager. Ms Stafrace confirmed that she returned from leave in early August 2024. She acknowledged that she had neither recruited Ms Pate nor negotiated the Employment Agreement but she said she had suggested to Ms Pate that they create an ongoing Business Development role for her. Ms Stafrace also said that before her resignation took effect on 30 August 2024, she had given instructions for Ms Pate's Employment Agreement to be amended to reflect this promotion but she has subsequently discovered that her instructions were never actioned.

• [5] Ms Smith gave evidence that she at no stage provided assurances, promises or offers to Ms Pate that she was or would be employed on an ongoing, permanent or full-time basis. She said that she was not authorised by the Respondent's board to offer Ms Pate long term employment but that in November 2024, having consulted with the board, she was able to offer extensions to Ms Pate and other employees whose fixed term contracts were due to expire in December 2024 and January 2025.

• [6] By letter dated 7 November 2024, Ms Smith offered Ms Pate a variation to the Employment Agreement that would extend her contract term until 28 March 2025. Ms Pate said that when presented with the offer of the variation to the Employment Agreement she raised some concerns. These were outlined in a letter she addressed to Ms Smith which was dated 13 November 2024 and included the assertion that her title had previously been changed to Business Development Manager. Ms Pate also outlined a request for various contract adjustments.

• [7] Ms Pate said that when she asked what would happen if she elected not to sign the variation to the Employment Agreement on offer, she was told by Ms Smith that her employment would end on 6 December 2024. This assertion was confirmed by Ms Smith. Ms Pate characterised Ms Smith's response as an ultimatum and said she "reluctantly" signed the written variation to the Employment Agreement on 27 November 2024. The written variation the Employment Agreement outlined the following:

"We are pleased to be able to offer you a variation to your current employment agreement whereby the contract term due to end on 6th December 2024 will be extended until 28 March 2025.

If you have any questions about this offer, please feel free to contact me to discuss further.

If you are comfortable with this variation and wish to accept it, please sign in the space below prior to 21st November 2004.

Thank you for being such a valued member of the WomenCAN Australia team."

• [8] Ms Saunders commenced as Chief Executive Offer of the Respondent on or about 13 January 2025. Ms Pate sent Ms Saunders and the Respondent's board an email on 21 February 2025 asserting that the written variation neither reflected her responsibilities and qualifications and nor did it include an additional day per week. Ms Pate continued by outlining a request for the following "contract adjustments":

"1. Full-Time Contract Adjustment: Transition from 4 to 5 days per week, effective March 2025.

1. Salary Increase: Align my salary with the SCHADS award level 6, at $53.84 per hour, reflecting my expanded responsibilities, qualifications, and market standards.

1. Permanent Employment: Transition to a permanent ongoing employment contract.
2. Remuneration Adjustment: Compensation of $10.82 per hour from 1st September 2024 (approximately $7,141.20, plus additional superannuation)."

• [9] Evidently, the Respondent was unmoved by Ms Pate's 21 February 2025 email. Ms Saunders said that she notified Ms Pate during a conversation on or about 24 February 2025 that her employment would not be renewed at the expiration of its term. On 28 February 2025, Ms Saunders sent an email to Ms Pate which stated:

"I am writing to formally confirm our discussion on Monday 24th February 2025 that your fixed-term contract with WomenCAN Australia will conclude on 28th March 2025, in accordance with the terms of your employment agreement. As such, your employment with WomenCAN Australia will end on this date.

However, we are open to concluding your employment earlier by mutual agreement. Should you choose this option, we will pay you out for the remaining period of your contract. If this is something you would like to discuss, please let us know at your earliest convenience.

We appreciate your contributions to WomenCAN Australia during your tenure and thank you for your efforts. Should you require any further information regarding the conclusion of your contract or the offboarding process, please do not hesitate to contact me..."

• [10] In Coles Supply Chain Pty Ltd v Milford,[1] the Full Court of the Federal Court outlined the task of the Commission in cases such as this one, as follows:

"To summarise, when an application is purportedly lodged under s 365 it is open to a respondent to assert that there has been no dismissal, so giving rise to a dispute on that question. Such a dispute falls to be determined not under s 368 but under s 365 itself. It is an antecedent dispute going to the entitlement of the applicant to apply."[2]

• [11] As a person must have been dismissed in order to be entitled to make a general protections dismissal dispute application, I must determine whether Ms Pate has been dismissed by the Respondent before the Commission can exercise powers under s.368 to deal with a dispute about whether there was a dismissal in contravention of the general protections provisions set out in the Act.

• [12] Section 12 of the Act defines what is meant by the term "dismissed" in the Act by stating "see section 386". Section 386(1) of the Act relevantly defines the meaning of "dismissed" as follows:

(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

(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."

• [13] While s.386 appears within Part 3-2 of the Act dealing with "Unfair dismissal", the definition is applied generally, including when determining whether a person "has been dismissed" for the purposes of s 365(a).[3]

• [14] While Ms Pate relies on representations she says were made both when she was hired and then by Ms Stafrace in asserting that her employment was to be ongoing and not subject to a fixed term, the Employment Agreement provided that:

1. In entering into the Employment Agreement, Ms Pate was doing so on the basis of the terms and conditions in the Employment Agreement and not based on any representation or warranties made by any other person (Clause 21);

1. The Employment Agreement, inclusive of any schedules or annexures, recorded the entire agreement and understanding between the parties and overrode any prior agreement or written or oral understanding (Clause 21);

1. It contained the whole of the agreement between the parties in respect of its subject matter and superseded and replaced any previous representations, understandings or arrangements be they written, verbal or otherwise (Clause 18(b)); and

1. Despite any change to remuneration, position, duties or location, the employment would continue to be subject to the terms of the Employment Agreement unless otherwise replaced by an agreement in writing between the parties (Clause 18(d).

• [15] The terms of the Employment Agreement signed by Ms Pate on 28 June 2024 were clear. Item 7 of Schedule 1 outlined that Ms Pate was employed for a period of 6 months ending on 6 December 2024. As regards Ms Pate's reliance on Clause 4.1 of the Employment Agreement, in which it is stated that following the monitoring of "mutual suitability" during the probationary period, "ongoing permanent employment" would be confirmed and determined by the Respondent at its completion, it is noted that written agreement between the parties was required to vary terms of the Employment Agreement and no alterations or modifications to any of its provisions were valid unless made in writing and signed by both parties (Clause 18(c) and Clause 19). In this case, there was no written agreement between the parties confirming "ongoing permanent employment" for Ms Pate.

• [16] The only variation of the Employment Agreement made in writing and signed by both parties that is before the Commission is the written variation dated 7 November 2024 communicating the Respondent's offer to extend the employment to the further fixed date of 28 March 2025. This was signed by Ms Smith on 7 November 2024 and by Ms Pate on 27 November 2024. This variation was permitted by Clause 18(c) and pursuant to Clause 19, it varied the Employment Agreement.

• [17] As to Ms Pate's reliance on the references in Clauses 9.3.1 and 9.4.1 of the Employment Agreement to the annual and personal leave entitlements being "in accordance with the Act for every 12 months' continuous service", I do not consider these to be material. While these clauses are reflective of the manner in which the quantum of the annual entitlement for both annual and personal leave is outlined in the Act, it is also made clear in the Act that both forms of leave accrue progressively, as opposed to materialising on a particular anniversary every 12 months.[4] As regards the reference in clause 5.4 that salary "may be reviewed annually in conjunction with a performance review", I do not consider this discretionary feature of the Employment Agreement overrode either the initial stated specified period of 6 months outlined in Item 7 of Schedule 1 or the varied end date of 28 March 2025.

• [18] I am satisfied that the Employment Agreement, as varied in writing, was "a contract of employment for a specified period of time" within the meaning of s.386(2)(a) of the Act. That the Employment Agreement provided that Ms Pate's employment could be terminated on the giving of notice (Clause 13.1) does not alter its status. In Alouani-Roby v National Rugby League Ltd (Alouani-Roby)[5], the Full Court of the Federal Court concluded that, in the context of s.386(2)(a), the phrase "a contract of employment for a specified period of time" is apt to include fixed-term contracts which permit termination otherwise than at the expiry of the term. The Full Court said:

"... The concluding words in which s 386(2)(a) is expressed very clearly disclose that the statutory conception of "a contract of employment for a specified period of time" is apt to include fixed-term contracts that are terminable otherwise than by the expiry of their fixed terms. At least for present purposes, a contract of employment that is expressed to terminate upon the expiry of a nominated term is a contract for a specified period of time; and it is no less so merely because it reserves for the parties other modes of earlier termination."[6]

• [19] While the Full Court acknowledged that this conclusion may be "difficult to reconcile" with earlier observations of von Doussa J in Andersen v Umbakumba Community Council and was inconsistent with what had been the view of the majority of the Full Bench in Khayam v Navitas English Pty Ltd,[7] it continued as follows:

"Be that as it may, we think that the import of the words in which s 386(2)(a) of the FW Act is expressed is appreciably clear: a contract that is expressed, whether subject to other rights or not, to run for a nominated term is, for the purposes of s 386(2)(a) of the FW Act, a contract for a specified period; and remains as much notwithstanding that it might lawfully be brought to end otherwise than by (which is to say, before) the expiry of that period. If we are wrong about that and s 386(2)(a) of the FW Act permits of alternative constructions, any attendant ambiguity is immediately resolved upon consultation of the explanatory memorandum that accompanied the Fair Work Bill 2008 (Cth) (above, [28]). The intention underpinning the section could hardly have been made clearer: the "...fact that an employment contract may allow for earlier termination would not alter the application of [s 386(2)(a)]"

The authorities decided under differently-expressed provisions, although perhaps not wholly irrelevant, are not presently instructive. It is unnecessary that we should express a view about the correctness of, in particular, the decision of the Industrial Relations Court in Andersen. It suffices to observe that whatever might have been the correct construction of the phrase "contract of employment for a specified period of time" under earlier (and different) statutory and regulatory pronouncements, the correct way to construe those words as they appear in s 386(2)(a) of the FW Act is the way in which the learned primary judge was minded to construe them." [8]

• [20] The consequence of Full Court's decision in Alouani-Roby 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. Therefore, 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).

• [21] The application of the reasoning in Alouani-Roby to Ms Pate's case is clear. Ms Pate was employed under a contract for a specified period and she received confirmation that her employment would end at the conclusion of that period by the email from Ms Saunders sent on 28 February 2025. The email put Ms Pate on notice that no further employment would be offered, and her employment would cease at the end of the specified period, that is, at the conclusion of the varied specified period on 28 March 2025.

• [22] The reasoning in Alouani-Roby means that Ms Pate was employed under "a contract of employment for a specified period of time" for the purposes of s.386(2)(a) of the Act. That is so notwithstanding that the contract conferred an unconditional right on the Respondent to terminate the employment by the giving of notice in accordance with the Act. As Ms Pate's employment terminated at the end of that period, s.386(2)(a) applies and she was not "dismissed" for the purposes of the Act. Ms Pate is not able to make an application under s.365 for the Commission to deal with a dismissal dispute arising from her termination of employment.

• [23] Ms Pate was not dismissed by the Respondent. As such, her application does not meet the requirements of s.365 of the Act and the Commission does not have jurisdiction to deal with it. As a result of my determination, the application made by Ms Pate pursuant to s.365 of the Act is dismissed.

A Maher of CIE Legal for WomenCAN Australasia Ltd.

[1] [2020] FCAFC 152.

[3] See for example Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 at [14]- [15] and Alouani-Roby v National Rugby League Ltd [2024] FCAFC 161 at [12].

[5] [2024] FCAFC 161.

[8] [2024] FCAFC 161 at [52]- [53].

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