Lack of Evidence

The Fair Work Commission last week dismissed an objection made by an employer that the dismissed worker was employed for a fixed term. The case demonstrates once again that objections must be evidence based, have a legal foundation and that it important to have all arrangements committed to writing.

The Argument:
The Applicant, Ms. Sophia Davis filed an application for an unfair dismissal remedy under section 394 of the Fair Work Act 2009, after receiving notice of her termination via email. The Respondent is the Pilbara Community Legal Centre Inc, a not-for-profit organization funded by both Commonwealth and State grants.

The Respondent’s objection to the application was on the grounds that Ms. Davis was not dismissed because she was employed under a contract of employment for a specified period of time and her employment terminated at the end of that period, or she was employed for a specific task and her employment was terminated on completion of that task.

Ms. Davis was employed as a Housing Support Worker on two occasions, both on written fixed term contracts, after the last fixed term contract expired she continued to work in that role and believed her job was secure as her then CEO told her not to worry about funding and she was still employed. Ms. Davis and other employees who were also concerned about their contracts were told to “…keep working and we’ll see what happens” and were not given any explanation or a new contract.

The Evidence:
– Ms. Davis was first employed by the Respondent on a fixed term contract for the period dated 27th February 2017 until 31st October 2017.
– Ms. Davis second fixed term contract was for the period 30th April 2018 until 30th June 2018.
– The current acting CEO gave evidence that Ms. Davis continued to work in her role from July 1st 2018 for a period of 12 months and that Ms. Davis was advised her employment was for a fixed term period of one year but had no written evidence to support this.
– After cross examination the CEO states she did not in fact advise Ms. Davis of the above.
– The Respondent’s evidence is consistent with Ms. Davis that she was previously employed on two occasions on written fixed term contracts.
– There is no written contract for Ms. Davis employment for the period July 1st to 30th June 2019 although she worked and was paid for that period
– Ms. Davis received her termination notice via email on 10th June 2019, the reason given for termination was her failure to attend a performance management meeting and that her contract was expiring on 30th June 2019. She then asked the Respondent for written proof of a contract she was unaware existed but did not receive anything.

The Legislation
Section 386(1) describes when a person has been dismissed.

(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative;

Section 386(2) describes when a person has not been dismissed.
(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

The Outcome
While the submission of the Respondent was that Ms. Davis was not dismissed, that her contract ended on July 30th 2019, there was no written contract or agreement between the two parties to support such.

The Respondent filed for a jurisdictional objection under the grounds that Ms. Davis knew she was employed for a specified period of time, due to funding arrangements and other workers fixed term contracts. A jurisdictional objection can be lodged when an employer believes their dismissed employee does not fall under the Commission’s jurisdiction- meaning the Commission does not have the power to deal with the claim. In this case the respondent could not provide the Commission with evidence to support their objection.

The Commission found that Ms. Davis employment was terminated by the Respondent’s initiative with no written contract for a specified time or for a specific task, and that Ms. Davis did not voluntarily leave nor agree to her termination. The Commission dismissed the Respondent’s jurisdictional objection because Ms. Davis was not on a fixed term contract and he application for an unfair dismissal remedy could continue.

Ms Davis is represented by our Chief Industrial Advocate Patrick Mullally from Workclaims Australia.

For the full case: see [DAVIS v PILBARA COMMUNITY LEGAL CENTRE: 2020 FWC 1623]

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