[2015] FWC 555


Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Helen Akee
Link-Up (Queensland) Aboriginal Corporation



Application for relief from unfair dismissal.

[1] This decision reproduces in edited form the decision and reasons which were stated on transcript at the conclusion of the hearing conducted in relation to this matter on 15 January 2015.

[2] Ms Helen Akee has filed an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (FW Act). She contends that she was dismissed by her former employer, Link-Up (Queensland) Aboriginal Corporation (Link-Up) effective from 3 July 2014.

[3] Link-Up contends that Ms Akee’s application should be dismissed on the basis that it does not properly invoke the Commission’s jurisdiction. It contends that Ms Akee was never “dismissed” within the meaning of that word in the FW Act. “Dismissed” is given a definition in s.386 of the FW Act. Relevantly s.386(1)(a) provides:

[4] Section 386(2)(a) provides:

[5] The basic facts relevant to Link-Up’s jurisdictional objection are as follows:

[6] Link-Up contends that there was no dismissal by reason of s.386(2)(a) on the basis that Ms Akee was employed for a specified period from 12 February 2014 to 30 June 2014, and that the only employment contract after that was that offered for a further specified period until 16 July 2014. The employment, Link-Up says, terminated at the end of that further contract on 16 July 2014.

[7] I do not accept that contention on the evidence before me. The contract of 12 February 2014, which was written and executed, contained no provision indicating that it operated for a specified period until 30 June 2014. Its continuation was subject to the condition of a continuation of funding, but there was no evidence that funding stopped as at 30 June 2014. The Board arguably may have by its conduct repudiated the contract on 30 June 2014, but Ms Akee did not accept any such repudiation since she continued to attend for work.

[8] Any subjective belief which the parties may have had that the contract terminated on 30 June 2014 is not relevant. The contract is to be interpreted objectively according to its terms and not on the basis of the subjective beliefs of the parties. 1 Further, the parol evidence rule prevents Link-Up from relying on extrinsic evidence to subvert the express written terms of the contract.

[9] I am not positively persuaded, as I need to be, that Ms Akee accepted the terms of the 4 July 2014 offer and the 8 July 2014 proposed contract such as to form a separate contract replacing the earlier written and executed contract of 12 February 2014. The proposed new contract was not executed. Acceptance was never unequivocally conveyed. The duties under the putative new contract were never performed, and in the termination letter of 9 July 2014, it was stated that Ms Akee had indicated she was not prepared to perform those duties.

[10] I am therefore not satisfied that there was a further contract for a specified period as submitted by Link-Up. Even if there was, Link-Up has the further problem concerning whether Ms Akee’s employment terminated at the end of any such contract on 18 July 2014. The letter of 9 July 2014 clearly terminated the employment with a payment in lieu of notice. Where a payment in lieu of notice is made, there may be doubt as to when it is intended that the employment ends. In Siagian v Sanel Pty Ltd 2, the Industrial Relations Court of Australia (Wilcox CJ) said:

[11] The letter of 9 July 2014 is not pellucidly clear as to its intent but, on balance, I consider it evinces an intention to terminate the employment forthwith. No further duties were required to be performed, and confidential information was to be returned or deleted the following day. The more conventional situation these days is that a payment in lieu of notice is intended to terminate the employment immediately, and notions of “gardening leave” are relatively unusual. Further, I consider that the reference in the letter to Ms Akee not being required to work up until 16 July 2014 “as previously offered” indicates a withdrawal of the offer of 4 July 2014 rather than predicates it being in operative effect.

[12] Link-Up argues in the alternative that the dismissal was not at the initiative of the employer, since any further employment after 30 June 2014 was on the basis of a series of casual engagements which concluded at the end of each day or a temporary contract which terminated on the happening of a defined event. This contention is likewise rejected because:

[13] The jurisdictional objection is therefore dismissed.

al of the Fair Work Commission with the memeber's signature.



H. Akee on her own behalf.

R. E. Reed of counsel for the Respondent.

Hearing details:



15 January.

 1   Toll (FGCT) Pty Limited v Alphapharm Pty Limited (2004) 219 CLR 165 at [40]

 2   (1994) 122 ALR 333

 3   Ibid at 352; see also Mihajlovic v Lifeline Macarthur [2013] FWC 9804.

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