Amy Whebell v Uplit Association Inc. [2024] FWC 887

1 Fair Work Act 2009 s.365—General protections Amy Whebell v Uplit Association Inc. (C2023/6613) DEPUTY PRESIDENT LAKE BRISBANE, 5 APRIL 2024 Application to deal with contraventions involving dismissal – jurisdictional objection – applicant not dismissed – effluxion of time – outer limits contract – jurisdictional objection upheld – application dismissed. [1] Ms Amy Whebell (the Applicant) lodged a general protections application involving dismissal to the Fair Work Commission (the Commission) on 24 October 2023. The Applicant claimed that adverse action was taken against her by Uplit Association Inc (the Respondent) under ss.340 and 351 of the Fair Work Act 2009 (Cth) (the Act). [2] The Respondent raised a jurisdictional objection that the Applicant was not dismissed. The Respondent states that the Applicant was on an outer limits contract that had come to an end and therefore there was no termination at the initiative of the employer. [3] For the Applicant to be eligible to make a claim under s.365 of the Act, she will need to establish that she was dismissed in accordance with s.386 of the Act. [4] The matter was heard by video using Microsoft Teams on 20 January 2024. Background [5] The Applicant commenced employment with the Respondent on 18 October 2021, as a Marketing Manager. The Applicant was engaged on a full-time basis. The Applicant signed an employment agreement which specified the Applicant’s employment was to be set until 18 October 2023. [6] On 15 July 2022, the Applicant commenced a period of unpaid maternity leave. [7] On 23 February 2023, the Applicant emailed Ms Melissa Bates (Acting Chief Executive Officer of the Respondent) regarding a return-to-work date from her maternity leave, and she proposed that she return on a part time basis from the 17 July 2023. Ms Bates replied on 24 February 2023 wrote in an email that she would talk with the Applicant regarding a return-to- [2024] FWC 887 DECISION -- 1 of 8 -- [2024] FWC 887 2 work date after the Brisbane Writers Festival concluded. The festival ran from 10 - 14 May 2023. [8] On 31 May 2023, the Applicant sent an email to Ms Bates regarding her return to work. Ms Bates responded that they should set a couple of date and time options to discuss this. On 6 June 2023, Ms Bates and the Applicant had a phone call regarding this. [9] On 11 July 2023, the Applicant sent the following email to Ms Bates: “… As per our phone discussion, it would be great to explore the option of me returning to work part-time from the 6th of November 2023. I was hoping to do three days a week. I know the festival will require a full-time Marketing Manager closer to May which will not be suitable for me at this time. Therefore, I would suggest we employ a part-time Marketing Assistant from January to May, 3 days a week. This position could also assist the programming team as required which I have seen work well at other festivals. Looking at the 2022 festival, the marketing team definitely required more assistance. Marketing interns and volunteers are a great resource but also take up lots of time and energy. If we were to employ someone this would be more reliable and efficient for the whole team. I hope this is something we can accommodate and I would be happy to discuss this with you in more detail when you have the opportunity.” [10] A Board Meeting was held later this day. It was discussed that the Respondent had limited finances and a change in the role of Marketing Manager was required as it was an unnecessary expense during off-peak months.1 The Board determined that the role would be a six-month full-time role from January to June to correspond with the requisite marketing activities leading up to the festival. [11] A meeting was held between the parties on 30 August 2023. In this meeting, the Applicant indicated that she wished to return on a three day a week basis. The Respondent informed the Applicant that their financial resources were limited. Further the Respondent identified the risks of not having a full-time dedicated marketing manager in the months leading up to the festival in late May early June. [12] Following this meeting, the Applicant sent an email on 3 September 2023 confirming that she would be looking to come back to work 3 days a week from November 2023. The Applicant wanted to know if a decision had been made regarding her part time proposal. -- 2 of 8 -- [2024] FWC 887 3 [13] Ms Bates responded on 13 September 2023 with the following: “As flagged with you, BWF budget is so limited that it is unlikely we can afford a Marketing Manager in November or December of this year, but we’ve noted your work preferences and will look into BWF’s ability to accommodate them.” [14] On 4 October 2023, Ms Bates sent the Applicant an email attaching a letter containing the following: ‘Under clause 2.2 of the employment agreement, you are employed for the ‘Term’, being from 18 October 2021 to 18 October 2023. We acknowledge and have considered the proposals you put forward during our meeting. Unfortunately, your proposals are not financially viable or within the best interests of the Brisbane Writers Festival and its business obligations. The Brisbane Writers Festival has decided to adopt a new model of employing a full- time marketing manager on a six-month contract from January to June 2024. In these circumstances, your employment agreement will not be extended and will end on 18 October 2023. Should you wish to be considered for the six-month contract in 2024, we would welcome your application.2 [15] The Applicant lodged her application with the Commission on 24 October 2023. Consideration [16] Section 365 of the Act requires a person to be dismissed to be eligible to make a General Protections application involving dismissal. [17] 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. [18] The majority of the Full Bench in Khayam v Navitas English Pty Ltd [2017] FWCFB 5162 have summarised the principles regarding s386(1) of the Act where there is an effluxion of time in the employment contract at [75]: (1) The analysis of whether there has been a termination at the initiative of the employer for the purpose of s 386(1)(a) is to be conducted by reference to termination of the employment relationship, not by reference to the termination of the contract of employment operative immediately before the cessation of the employment. This distinction is important in the case of an employment relationship made up of a sequence of time-limited contracts of employment, where the termination has occurred at the end -- 3 of 8 -- [2024] FWC 887 4 of the term of the last of those contracts. In that situation, the analysis may, depending on the facts, require consideration of the circumstances of the entire employment relationship, not merely the terms of the final employment contract. (2) As stated in Mohazab, the expression “termination at the initiative of the employer” is a reference to a termination that is brought about by an employer and which is not agreed to by the employee. In circumstances where the employment relationship is not left voluntarily by the employee, the focus of the inquiry is whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment. (3) In Mahony v White, the Full Court stated that a termination of employment may be done at the initiative of the employer even though it was not done by the employer. In circumstances where the parties to a time-limited contract have agreed that their contract will expire on a specified date but have not agreed on the termination of their employment relationship, it may be the case that the termination of employment is effected by the expiry of the contract, but that does not exclude the possibility that the termination of employment relationship occurred at the initiative of the employer - that is, as a result of some decision or act on the part of the employer that brought about that outcome (4) Where the terms of an operative time-limited contract reflect a genuine agreement on the part of the employer and employee that the employment relationship will not continue after a specified date and the employment relationship comes to an end on the specified date, then, absent a vitiating or other factor of the type to which we refer in (5) below, the employment relationship will have been terminated by reason of the agreement between the parties and there will be no termination at the initiative of the employer. Further, in those circumstances a decision by the employer not to offer any further contract of employment will not be relevant to the question of whether there was a termination of employment at the initiative of the employment. The decision not to offer further employment is separate and distinct from the earlier agreement between the parties to end the employment relationship on a particular date (Griffin/Fisher). However if the time-limited contract does not in truth represent an agreement that the employment relationship will end at a particular time (as, for example, in D’Lima), the decision not to offer a further contract will be one of the factual matters to be considered in determining whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment. (5) In some cases, it will be necessary to go further than just examining the terms of any contract in which the parties have ostensibly agreed to terminate the employment relationship at a particular time. It is not necessary or appropriate that we attempt to identify exhaustively all relevant matters, but the authorities to which we have earlier referred indicate that the following are likely to be relevant and may in some cases be determinative: -- 4 of 8 -- [2024] FWC 887 5 (a) The time-limited contract itself may be vitiated by one of the recognised categories by which the law excuses parties from performance of a contract. The categories potentially relevant in an employment context include the following: • the employee entered into the contract as a result of misrepresentation or misleading conduct by the employer; • the employee entered into the contract as a result of a serious mistake about its contents or subject matter; • there has been unconscionable conduct associated with the making of the contract, which may relevantly include that the employer took advantage of a disability affecting the employee such as lack of education, lack of information, lack of independent advice or illiteracy; • the employment contract was entered into by the employee under duress or coercion (which might include the types of coercion prohibited in ss 343(1)(a), 348 and 355) resulting from illegitimate pressure on the part of the employer; • the employee lacked the legal capacity to make the contract; or • the contract was a sham in the sense that it was not intended by the parties to give legal effect to its apparent terms or in the broader sense dealt with in Pt 3-1 Div 6 of the FW Act. If any of the above applies there will be no legally effective time-limit on the employment (Fisher). (b) The time-limited employment contract may be illegal or contrary to public policy (for example, it contains relevantly objectionable terms as defined in s 12 of the FW Act or has the purpose of frustrating the policy or operation of the FW Act or preventing access to the Commission’s unfair dismissal jurisdiction). Whether the employment was constituted by successive short-term contracts, or the use of time- limited contracts was appropriate in the relevant field of employment may be some of the considerations relevant to an examination of the employer’s purpose for entering into such contracts (D’Lima/Fisher). (c) The contract may have been varied, replaced or abandoned by way of a separate agreement, whether in writing and/or orally, such that its ostensible time limit no longer applies (Fisher). (d) The employment contract may not be limited to the terms of a written document and may, for example, be one of a series of standard-form contracts which operated for administrative convenience and did not represent the reality or the totality of the terms of the employment relationship (Fisher/D’Lima). (e) During the term of the employment relationship the employer may have engaged in conduct or made representations (for example, representing to the employee that the employment will continue subject to conduct and performance notwithstanding a contractual time limit on the employment) which provide a proper legal foundation to prevent the employer from relying upon the terms of the contract as the means by which the employment relationship has been terminated (Fisher). -- 5 of 8 -- [2024] FWC 887 6 (f) The terms of the contract time-limiting the employment may be inconsistent with the terms of an award or enterprise agreement given effect by the FW Act which prohibit or regulate fixed-term employment, in which case the terms of the award or agreement will prevail over the contract (Fisher) [19] Deputy President Colman adopts a similar reasoning to the majority of the Full Bench [128]: The correct approach to interpreting s386(1) is akin to the one that prevailed under the WR Act. In applying s 386(1) to a case involving outer limit contracts, all of the circumstances should be considered to determine whether the employer terminated the employment relationship. It is necessary to consider the outer limit contract (including whether it is valid or may have been vitiated in some way), the possible relevance of statute and industrial instruments, and promises or representations that might have been made to the employee by the employer during the employment. In short, there may be more to the employment relationship than the outer limit contract. However, in the absence of other significant factors, the employment will have come to an end by the effluxion of time in accordance with the agreement of the parties. The High Court’s observation in Victoria v Commonwealth will be apposite, even if it is not a binding statement of law in relation to the interpretation of s 386(1): ‘as a matter of ordinary language, an employer does not terminate an employee’s employment when his or her term of employment expires.’ [20] The Respondent submitted that there was no termination at the initiative of the employer as there was a genuine agreement of the employment terms and there was an effluxion of time. The Employment Agreement signed by the Applicant on 18 October 2021 states the following: Clause 2.2 ‘The Marketing Manager is employed for the Term, unless the employment is terminated earlier in accordance with clauses 2.3 or 13.’ Clause 13 Subject to clauses 2.3, 13.2, 13.3 and 13.4, the Marketing Manager’s employment: (a) Shall be terminated on the Completion Date Schedule 1 Commencement Date: 18 October 2021 Completion Date: 18 October 2023 [21] To reiterate Khayam, where the terms of an operative time-limited contract reflect a genuine agreement on the part of the employer and employee that the employment relationship will not continue after a specified date and the employment relationship comes to an end on the -- 6 of 8 -- [2024] FWC 887 7 specified date, then, absent a vitiating or other factor, the employment relationship will have been terminated by reason of the agreement between the parties and there will be no termination at the initiative of the employer. [22] There is no vitiating factor demonstrated by the Applicant. The Employment Agreement appeared to be entered into with genuine agreement on 18 October 2021. [23] There was no indication that the Applicant was on successive short-term contracts, or demonstrated a nature where the contract was a standard administrative contract used for convenience. The Applicant’s contract lasted two years, and there were reservations by the Respondent’s board about the financial viability of a Marketing Manager position. Ms Whebell was aware that a Full-Time manager would be needed near the timing of the Brisbane Writers Festival around May. [24] The contract was shortened to reflect the requirements of the Respondent as the Marketing Manager role would only be a 6-month full time contract from January to June 2024 to save costs.3 There was a gap of at least two and half months from 4 October 2023 to early January 2024 where the Respondent would not engage a Marketing Manager. It indicates that the effluxion of time was genuine, and not an action taken by the Respondent to terminate the Applicant’s employment. [25] There was no variation of contract which formalised or promised an extension of her contract. [26] Although Ms Bates made representations that she was looking into role for the Applicant when she returned, there was no representations that a role that identified that the Applicant would have her employment contract renewed upon returning from maternity leave in any email provided by the Applicant. There are discussions regarding a proposal from the Applicant to work part-time on 11 July 2023. It was merely a proposal, not a representation. [27] The Applicant’s work request of working part-time were considered by the Respondent. However, when a board meeting took place on 11 July 2023 after the Applicant’s email, it was indicated that the future the Marketing Manager role would only be a 6-month full time contract from January to June 2024 to save costs. The effluxion of time was reflective of the Respondent not intending for the Marketing Manager role to be set, but to be reevaluated based on the financial resources of the Respondent. [28] The Applicant states that her conversations with Ms Bates on 30 August 2023 indicated she would be required to work on a full-time basis.4 Although I am satisfied that the Applicant was being truthful on this point, this does not mean a representation was made that the contract would be renewed, or that there would be a continuation of the employment relationship. It appeared to have been a consideration that needed to be accounted for when the outer-limit contract was set to expire so the Respondent could figure out how the Marketing Manager role would be performed in the future. -- 7 of 8 -- [2024] FWC 887 8 Conclusion [29] I understand that the Applicant was very keen to return to work three days per week considering her significant life changes in having her child. However, the Respondent considered the proposition and were not in a position where this could be accommodated. The Applicant had hoped she could recast the contract that she originally agreed to, and the representations made by Ms Bates seemed that they were trying to identify a possible solution. However, there was not a meeting of the minds between the parties at the time of renewal. Therefore, the contract expired as originally agreed with no renewal in place. [30] There is no indication that there was a vitiating or other factor which changed the nature of the operative time-limited employment contract. Therefore, the Applicant was not dismissed in accordance with s.386(1) of the Act. There was no termination at the initiative of the employer. [31] The jurisdictional objection is upheld, and the application is dismissed. I Order accordingly. DEPUTY PRESIDENT Appearances: A. Whebell appearing as the Applicant. T. Zahara appearing on behalf of the Respondent from Hamilton Locke. Hearing details: 20 January 2024. Brisbane. Printed by authority of the Commonwealth Government Printer <PR773242> 1 Witness Statement of Melissa Bates 20. 2 Letter dated 4 October 2023 3 Witness Statement of Melissa Bates 20 4 Witness Statement of Amy Whebell 16. -- 8 of 8 --