Fixed term employment contracts and the fair work system

A genuine contract of employment for a specified term, which terminates at the expiration of that term, cannot attract an unfair dismissal claim. That is so even if the contract refers to an “initial term”. Although there is a legal controversy about the impact upon this principle if the contract contains a clause entitling a party to bring a specified term of employment to end and before that time, there is no doubt about the first of these principles.

“The Applicant’s contract of employment was in my view a contract for a specified period. The terms of the contract specify a period of time that has certainty – 12 months from 19 January 2018. The contract does not provide for a right of termination – unilateral or otherwise. There is some debate in relation to whether such a provision results in a contract not being for a specified period as provided in s. 386(2)(a). In the present case it is not necessary to consider this as the contract contains no such provision. Accordingly it cannot be argued on this basis that it is not in truth a contract for a specified period.

The Respondent did not tender the position description referred to in the contract and the parties did not specifically refer to the provisions of the position description in relation to review of the contract. In light of the Applicant’s denial that he had ever been shown the document tendered by the Respondent in response to my request, I have not had regard to that document. The fact that the contract mentions a review process does not change its nature as a contract for a specified period of time. The review does not give rise to any right to terminate the contract before its specified end date and does not raise any ambiguity in relation to the specified end date.

I do not accept that the inclusion of the term “initial” created ambiguity about the period of time for which the contract would run. If there was ambiguity associated with the use of the term “initial” it could only relate to whether it was intended that a further contract would be offered at the completion of the period specified in the earlier contract. The term initial did not alter the nature of the contract in which it was included so that the contract ceased to be a contract for a specified period of time.

The present case is not one where the contract under consideration is the latest in a series of time limited contracts so that it could be said that the contract did not represent the reality or totality of the terms of the employment relationship. It was the first and only contract between the parties. Nor do I accept the other matters relied on by the Applicant to establish ambiguity about the end date of the contract or its nature. That the Respondent agreed to the Applicant entering into a novated lease to purchase a vehicle for a period beyond that specified in the contract, did not create any ambiguity in relation to the period of time specified in the contract.”

Cook v Seventh-day Adventist Aged Care (South Queensland) Ltd trading as Adventist Retirement Plus (2020) FWC 406 delivered 28 January 2020 per Asbury DP