Fixed term contracts or ongoing employment?

The distinction between a series of rolled over fixed contracts which can for all intents and purposes be regarded as ongoing employment rather than a series of distinct and separate tenures can sometimes be important to whether or not a termination of employment occurs with the effluxion of time or at the initiative of the employer, thus

 

“Several contracts and continuing employment

[80] I am not satisfied that the variety of contracts on which the Applicant was employed at

the University operated so as to constitute continuing employment. I acknowledge that the

periods of those contracts overlapped. However, the evidence before me does not substantiate

that the roles were all essentially the same or similar. I am not satisfied that this is a case where

the Applicant was on series of fixed term contracts that were essentially ‘rolled over’.

[81] In particular I consider that the ECRF contract was of a different species to the earlier

contracts. The ECRF contract, unlike the others, was predicated on the Applicant having sought

and received a grant. The ECRF contract notes that the Applicant is ‘named in the grant’ and

that ‘should the grant continue beyond 16 February 2023 (and [she] remain a named party to

this grant) [she] may be offered a further period of fixed-term employment.’

38 The earlier

contracts do not contain any similar provision or note. Further, a review of the position

descriptions associated with each contract supports the different nature of the ECR Fellowship

to the earlier work undertaken by the Applicant.

[82] My conclusion is supported by the evidence of the Applicant that, having received the

ECR Fellowship she ‘was no longer working with [her] supervisor and had to work

independently.’

39

[83] I accept that the Applicant was aware that, for her employment to continue beyond

16 February 2023, she would need to secure further funding.

[84] Further, I am satisfied that the University had good cause to place research only

academics on fixed term contracts tied to funding. To not do so could result in the University

being exposed to extraordinary costs outside of its control. The use of fixed term contracts for

research only academics does not appear to be an administrative convenience.

[85] For these reasons I am satisfied that I can consider the ECRF contract alone (and not the

employment relationship) in determining whether the Applicant was dismissed within the

meaning of the FW Act.”

 

Van Dyk v Flinders University [2023] FWC 2301 delivered 6 October 2023 per Bissett C