Unfair dismissal and specific task

An employee is not protected from unfair dismissal if amongst other things he or she was expressly employed for a specified task and his or er employment is terminated on the completion of the task; see sub-sec386(2)(a) Fair Work Act 2009. What does that mean?

“Dismissal or Specified Task Contract?

[26] In Kirsten Dale v Hatch Pty Ltd,

13 the Full Bench of the Commission considered what

constituted a contract of employment for a specified task. It held:

[8] The consideration of Ms Dale’s appeal must start with determining the meaning

of the expression “contract of employment … for a specified task” in s.386(2)(a). The

ordinary meaning of the word “task” is, as stated in the Decision, a piece of work to be

performed or undertaken. That was the meaning assigned to the term in the decision of a

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Full Bench of the Australian Industrial Relations Commission (AIRC) in Qantas Airways

Limited v Fetz. It must be the task of the employee, not the employer, as was pointed out

by Wilcox CJ in Drury v BHP Refractories Pty Ltd in relation to the same expression then

appearing in reg.30B(1)(b) of the Industrial Relations Regulations:

“The words “for a specified task” qualify the words “contract of employment”. The

contract of employment must be for a specified task; it must be a contract under

which the employee is to carry out a specified task. The words “for a specified task”

have nothing to do with the employer’s task, or project. This seems clear as a matter

of grammar and it makes sense in policy terms. One can understand a view that the

protections provided by Division 3 of Part V1A should not be available to people

who undertake only a specified task. Especially after the task is completed, it would

be anomalous to restrict the employer’s right to terminate the contract of

employment. Bearing in mind that many projects undertaken by employers continue

for many years, while employees come and go, it would be equally anomalous to

exclude relief under Part V1A simply because the employee was engaged in

connection with a particular project.”

[9] The task must be “specified” – that is, identified in definite terms. In a written

contract of employment, it could usually be expected that the task would be identified in

express words, although it is not impossible to conceive of a case whereby the task might

be specified as a matter of necessary implication. Further, the relevant contract of

employment must be “for” the specified task, meaning that it has been entered into for

the purpose of the performance and completion of that task.

[10] A critical element in this part of the exception in s.386(2)(a) is, we consider, that

the task be sufficiently definite in its nature and delineation such that identification of

when the task is completed is not a matter of doubt or speculation or contingency but is

clear and predictable. We draw that inference from the fact that s.386(2)(a) requires the

termination of employment to occur at the end of the completion of the task, thus requiring

it to be identifiable with certainty. The context supports that inference in that the other

exceptions contained in s.386(2)(a) – a contract for a specified period terminating at the

end of that period, or for the duration of a specified season terminating at the end of the

season – likewise involve the termination of employment occurring at an identifiable time

or upon an identifiable event.

[Footnotes omitted]

[27] The Contract clearly provides the start date and end date and specifies the end of the

contract will occur when the child/children commence childcare. I do not consider, however,

that the Contract was for a specified term because:

(a) It foreshadows continued employment, albeit on “mutually agreed terms”; and

(b) The Contract contains a broad and unconditional right of termination under the “Ending

Employment” term.

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Small Business Fair Dismissal Code?

[28] There are two types of dismissal to which the Small Business Fair Dismissal Code (the

Code) applies, being summary dismissal for misconduct and dismissal regarding the capacity

or competency to perform their job. The Applicant’s case falls outside those bases for dismissal

covered by the Code, and so her dismissal could not involve the Code.

Was the Dismissal Harsh, Unjust or Unreasonable?

[29] The only outstanding issue is whether the Applicant’s dismissal was ‘harsh, unjust or

unreasonable,’ and therefore an unfair dismissal. To this end, I must direct attention to s.387 of

the Act, dealing with the matters to be taken into account by the Commission in determining

whether the dismissal was unfair. It is trite to observe that each of the matters must be

considered and a finding made on each of them, including whether they are relevant or not.

Was the Dismissal Harsh, Unjust or Unreasonable?

[30] Section 387 of the Act identifies the matters that the Commission must take into account

in deciding whether a dismissal was “harsh, unjust or unreasonable:”

(a) Whether there was a valid reason for the dismissal related to the person’s capacity

or conduct (including its effect on the safety and welfare of other employees);

(b) Whether the person was notified of that reason;

(c) Whether the person was given an opportunity to respond to any reason related to

the capacity or conduct of the person;

(d) Any unreasonable refusal by the employer to allow the person to have a support

person present to assist at any discussions relating to dismissal;

(e) If the dismissal related to unsatisfactory performance by the person—whether the

person had been warned about that unsatisfactory performance before the dismissal;

(f) The degree to which the size of the employer’s enterprise would be likely to impact

on the procedures followed in effecting the dismissal;

(g) The degree to which the absence of dedicated human resource management

specialists or expertise in the enterprise would be likely to impact on the procedures

followed in effecting the dismissal; and

(h) Any other matters that the FWC considers relevant.

Whether there was a valid reason for the applicant’s dismissal – s 387(a)

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[31] In Rode v Burwood Mitsubishi,

15 a Full Bench of the then Australian Industrial Relations

Commission discussed the meaning of valid reason in the context of the relevant provisions of

the Workplace Relations Act 1996, and referring to Selvachandran v Peteron Plastics Pty Ltd

16 (Selvachandran). The Full Bench found:

[18] While Selvachandran was decided under the former statutory scheme the above

observations remain relevant in the context of s.170CG(3)(a). A valid reason is one

which is sound, defensible or well founded. A reason for termination which is capricious,

fanciful, spiteful or prejudiced is not a valid reason for the purpose of s.170CG(3)(a).

[19] We agree with the appellant’s submission that in order to constitute a valid reason

within the meaning of s.170CG(3)(a) the reason for termination must be defensible or

justifiable on an objective analysis of the relevant facts. It is not sufficient for an

employer to simply show that he or she acted in the belief that the termination was for a

valid reason.

[32] The Applicant is correct in her assertion that there was no valid reason for her dismissal

related to capacity or conduct.  While each party was critical of the conduct of the other in the

proceedings, the Respondent did not express dissatisfaction with the Applicant’s performance

while she was employed, and it was not a reason for the dismissal.

[33] The reason for the Applicant’s dismissal was clearly foreshadowed in the Contract.

Your start date will be 05.07.2021 and ends when the child/children commences

childcare. You will be given at least two week’s notice and a new employment contract

is to be executed on mutually agreed terms.’

[Emphasis added]

[34] It was always the intention of the parties that the employment would end when the

children commenced daycare. In the Application, at Question 3.1, the Applicant stated:

My employer secretly enrolled her children in daycare 3 or more days a week effective

immediately, which meant there was no longer full-time work for me as their nanny. She

says I was dismissed for asking for a raise.

[35] The Applicant clearly understood that, as was foreshadowed in the Contract, the

children commencing daycare meant there was no full-time work for her. I reject the suggestion

that Ms Tseng “secretly” enrolled her children and accept that the acceptance of her second

son into childcare at less than 12 months of age came as a surprise to her. Once aware of that

accepted enrolment Ms Tseng promptly advised the Applicant.

[36] I find that the Respondent had a valid reason to dismiss the Applicant, being the entirely

unremarkable event foreshadowed 18 months prior and included in the Contract, of the

Respondent’s children attending childcare. I further reject any suggestion that any fault lies

with the Respondent for not agreeing to terms for further employment. It is clear that the

Applicant strenuously resisted negotiation until she received a “redundancy letter”, and the

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Applicant never moved from her position that she should be paid $80,000, a significant pay

increase, and only have to work four days a week. No terms for further employment could be

mutually agreed.

Section 387(b) – Notification of the reason for the dismissal

[37] Notification of a valid reason for termination must be given to an employee protected

from unfair dismissal before the decision is made, in plain and clear terms. In Crozier v Palazzo

Corporation Pty Ltd the Full Bench of the Australian Industrial Relations Commission dealing

with similar provision of the Workplace Relations Act 1996 stated the following:17

“[73] As a matter of logic procedural fairness would require that an employee be

notified of a valid reason for their termination before any decision is taken to terminate

their employment in order to provide them with an opportunity to respond to the reason

identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it

was sufficient to notify employees and give them an opportunity to respond after a

decision had been taken to terminate their employment. Much like shutting the stable

door after the horse has bolted.”

[38] While the Respondent did not provide the Applicant with an opportunity to respond to

the reason for dismissal before sending the termination letter, that failure must be viewed in

light of the facts that:

(a) The Applicant was absent from the workplace on annual leave;

(b) There had been numerous incidences of the Applicant and Ms Tseng discussing the

change in circumstances regarding daycare and the consequences of that change; and

(c) The Contract had already recorded the possible reason for termination and the facts that

would substantiate that reason. It was clearly not a surprise to the Applicant.

[39] The Applicant contended Ms Tseng did not comply with any requirements to consult

about the dismissal in the industrial instrument that applied to her employment, though she

failed to identify the instrument to which she was referring. Nonetheless, I note that between

13 and 27 January there was constant communication between the parties traversing the

Applicant’s possible future terms of employment and the terms upon which employment could

continue.  I do not consider that there was any failure to consult. Rather, there was constant and

daily consultation.

[40] Although the Respondent did not provide the Applicant with an opportunity to respond

to the reason for dismissal before sending the termination letter, for the above reasons I do not

consider that any weight should be accorded to that factor.

Section 387(c) – Opportunity to respond to any reason

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[41] The Applicant was not terminated for capacity or conduct, and this consideration is not

a relevant to the circumstances.

Section 387(d) – Unreasonable refusal by the employer of a support person

[42] Where an employee protected from unfair dismissal has requested a support person be

present to assist in discussions relating to the dismissal, an employer should not unreasonably

refuse that person being present.

[43] There is no positive obligation on an employer to offer an employee the opportunity to

have a support person. As no request for the presence of a support person was made, this is not

a consideration that can be accorded any weight.

Section 387(e) – Unsatisfactory performance

[44] The dismissal was not for unsatisfactory performance, and this is not a relevant

consideration.

Sections 387(f) and 387(g) – The size of the employer’s enterprise/human resources

[45] The Respondent is a very small employer, whose only employee was the Applicant. The

Respondent did not have access to dedicated human resource managers.

[46] There is no evidence before me, and nor did either party contend, that the Respondent’s

size impacted on the procedures followed by it in dismissing the Applicant. This factor weighs

neutrally in my consideration.

Section 387(h) – Other relevant matters

[47] I have noted and taken account of the submissions of both parties but consider that no

issues relevant to my consideration arise under this factor.

Conclusion

[48] I have made findings in relation to all matters specified in s 387 of the Act as relevant.

I must consider and give due weight to each as a fundamental element in determining whether

the termination was harsh, unjust or unreasonable, and therefore an unfair dismissal.

[49] I have found the Respondent had valid reasons for the dismissal of the Applicant. While

I found the Respondent did not provide the Applicant with an opportunity to respond to the

reason for dismissal before sending the termination letter, I note that I have accorded no weight

to that factor due to the unusual circumstances of this matter. Further, no other factors were

accorded weight.

[50] I therefore do not find that the dismissal of the Applicant was harsh, unjust or

unreasonable.

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[51] The Application is dismissed.”

 

Elliott v Florrie Tseng [2023] FWC 1648 delivered 2 August 2023 per Cross DP