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