DECISION

Fair Work Act 2009
s.394—Unfair dismissal

William Zammit
v
Larrakia Nation Aboriginal Corporation
(U2015/9313)

Application for relief from unfair dismissal - jurisdiction - fixed term contract.

[1] Mr William Zammit has made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking relief from unfair dismissal. Mr Zammit was employed by Larrakia Nation Aboriginal Corporation (LNAC) as a Senior Marine Ranger. He commenced employment on 15 April 2014 and his employment ended on 30 June 2015.

[2] LNAC says that Mr Zammit was employed pursuant to a fixed term contract of employment and his employment ended at the end date of that employment contract. It says that he was not dismissed but that his employment ended in accordance with the terms of his contract, therefore, it says the Commission does not have jurisdiction to deal with the application.

Evidence and submissions

[3] Ms Debbie-Jean Martin, Senior HR Officer for LNAC gave evidence that Mr Zammit was employed on 15 April 2014 on a fixed term contract as a casual employee to work on the Seaforce contract. 1 The Seaforce contract related to support services for divers for a major resources project. Mr Zammit’s contract was extended in line with continuation of the Seaforce contract on a number of occasions. Mr Zammit’s contract was ultimately extended until 30 June 2015.2 In a letter dated 15 June 2015 Mr Zammit was advised by LNAC that his contract would not be extended beyond 30 June 2015.3 Ms Martin’s evidence is that Mr Zammit was employed until 30 June 2015 and paid for all work performed by him until that date.

[4] Mr David Kurnoth, the Employee Assistance Officer/Larrakia Rangers Mentor at LNAC provided a statutory declaration. He was not available for cross examination but, with the deletion of some parts of the statutory declaration (to which LNAC agreed) Mr Zammit did not object to the declaration being admitted. Mr Kurnoth states that on 24 June 2015 he attended a meeting with Mr Zammit and Ms Danielle Taylor, the (then) HR Officer for LNAC. At this meeting Mr Zammit was advised that his employment would cease with LNAC at the end of his current contract on 30 June 2015. Mr Zammit asked if the termination had anything to do with an altercation with Carl Joswig, another employee of LNAC. Mr Zammit was told LNAC was not aware of the altercation, it had nothing to do with the termination and that Mr Zammit was not being singled out. Mr Kurnoth further stated that Mr Zammit said at the meeting that he believed his employment was being terminated because of his altercation with Mr Joswig and that he had been bullied and harassed by Mr Joswig.

[5] LNAC says that the terms of Mr Zammit’s employment were consistent with the terms of the Larrakia Nation Aboriginal Corporation Enterprise Agreement 2012-2016 4 (the Enterprise Agreement). That Enterprise Agreement allows for the engagement of employees on a full time, part time or casual basis. It also allows for the engagement of staff on a fixed term basis within any of these categories.

[6] LNAC submits that Mr Zammit was a casual employee but even if he was a part-time employee (as he claims) this does not change the fact that he was employed on a fixed term contract that came to its end. LNAC says that Mr Zammit expected to be employed beyond 30 June 2015 does not change the nature of his employment.

[7] LNAC says that Mr Zammit was employed on a fixed term contract and his employment ended with the conclusion of that contract due to the effluxion of time. For this reason it submits that it did not terminate his employment. It therefore submits that there is no jurisdiction for the Commission to hear the application for unfair dismissal.

[8] LNAC relies on the decisions in Drummond v Canberra Institute of Technology 5 and Hayes & ASU v Employee Assistance Service NT6 to support its case.

[9] Mr Zammit stated in evidence that he accepts that he was on a fixed term contract until 30 June 2015.

[10] Mr Zammit gave evidence that he was initially employed as a casual employee by LNAC on a fixed term contract. He says that the nature of the contract and the nature of his work, including that he worked five days per fortnight on a regular roster, suggests he should have been employed as a part time employee pursuant to clause 11.2 of the Enterprise Agreement.

[11] Mr Zammit says that from May 2015 onwards he did not receive the hours he expected (of 5 days per fortnight). He submits that his hours were reduced and he was ultimately dismissed because he ‘had long been a thorn in the side of Larrakia making many complaints about the on-going in safe and illegal working environment in which [he] and his colleagues were expected to perform.’ Mr Zammit submits that he was a ‘safety whistle-blower’ and was treated in the way of many whistle-blowers in that he was ‘removed or silenced.’ 7

[12] Mr Zammit says he was never told of the ‘operational issues’ that meant his contract could not be extended. He submits that there were no changes in operations in the period May – June 2015 and that the only change that occurred was that he had his hours reduced. He says that there was no alteration to the level of service provided under the Seaforce contract.

[13] Mr Zammit submits that, under the terms of the Enterprise Agreement any changes in operational matters should have been subject to the consultation provisions of the Agreement which he says did not occur.

[14] Mr Zammit also submits that the Seaforce contract did not end on 30 June 2015 but was extended to September 2015. Two of his colleagues had their contracts extended and he had a reasonable expectation that his contract would be extended as well so the termination of the Seaforce contract cannot be a reason for the termination of his employment.

[15] Mr Zammit submits that if it was true that his employment ended due to the effluxion of time there was no reason for LNAC to bolster its reasons for his dismissal with other irrelevant arguments in relation to operational reasons and the cessation of the project. Further, Mr Zammit submits that he had a reasonable expectation of on-going work, there were no problems with his work performance, that his rights as an employee had been abrogated by LNAC and his hours given to a new employee.

[16] Mr Zammit referred me to the decision in Downes v The Uniting Church in Australia Property Trust (Q) 8 in support of his case.

Consideration

[17] Section 386 of the Act states:

386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season…

[18] If Mr Zammit has not been dismissed the Commission has no jurisdiction to hear his claim for unfair dismissal.

[19] To determine this question it is necessary to determine if Mr Zammit was employed under a contract of employment for a specified period of time. The legislation in this regard is clear on its face. If a person is employed for specified period of time and the employment has terminated at the end of this time the person has not been dismissed.

[20] On 15 April 2014 Mr Zammit signed a contract of employment with LNAC which stated, in part:

1. Position:

1.1 Your employment will be on a casual basis, as required, starting from: 15/04/2014 and finishes at 20/06/2014.

1.2 Each occasion that you work will be a separate contract of employment which ceases at the end of that engagement. 9

[21] At some stage this initial contract was extended until 31 December 2014. On 15 December 2014 it was further extended until 30 June 2015. That extension (the ‘extension contract’) stated:

I am pleased to offer you the extension for your contract starting from 01/01/2015.

Your current contract as Senior Marine Ranger will end on 31/12/2014, but based on the mutual agreement and Larrakia Nation Aboriginal Corporation need, we decided to offer you the alteration in your employment end date for 01/01/2015 to 30/06/2015.

All terms and conditions of you current employment will be the same as you previous contract. 10

[22] Whilst the Commission was not provided with a copy of the signed extension contract, Mr Zammit does not dispute that his contract was extended until 30 June 2015 and that this was the end date of his contract.

[23] I am satisfied that Mr Zammit was employed on a fixed term contract. Mr Zammit agrees that he was and the evidence produced for the Commission supports this finding.

[24] I also find that Mr Zammit’s contract of employment had an end date of 30 June 2015 and that Mr Zammit’s employment ended when the fixed term contract reached its end date.

[25] In these circumstances I must find that Mr Zammit was employed for a specified period of time and that his employment ended at the end of that period.

[26] I have considered the decision in Downes referred to by Mr Zammit. This case does not support Mr Zammit’s arguments. In Downes SDP Richards found that, because Ms Downes’ employment was terminated prior to the end of her fixed term contract and she was paid out the balance of her contract, the contract did not end due to the effluxion of time, instead it ended earlier ‘and because of the unilateral intervention of the employer.’ 11 For this reason SDP Richards found that she was considered to have been dismissed.

[27] The circumstances with respect to the end of Mr Zammit’s employment are clearly distinguishable from those in Downes. Mr Zammit worked all shifts he was rostered to work until 30 June 2015. His employment ended at this time. Mr Zammit was not paid out the balance of any contract as was the case in Downes as his employment was not terminated prior to the end of his employment contract.

[28] Whilst it is not necessary for me to consider the length of operation or any extension to the Seaforth contract the matter was raised by Mr Zammit and it warrants some comment. That contract is a business arrangement between LNAC and its contracting partner. That Mr Zammit was employed to work on the Seaforth contract does not mean that his employment was tied to the Seaforth contract or that any extension of the Seaforth contract affected his contract. Mr Zammit’s employment contract with LNAC is the relevant contract. The employment contract ran until 30 June 2015 and was not extended beyond this date.

[29] Whether Mr Zammit was a part time or casual employee is also not a matter that needs to be decided to determine if he is eligible to make an application for unfair dismissal. Suffice it to say Mr Zammit’s contract says he was employed as a casual employee. That he worked a regular pattern of shifts is not the matter that determines his category of employment. In any event the Enterprise Agreement allows for the employment of part time or casual employees on a fixed term contract such that a determination on this question will not affect the findings made or the decision reached.

[30] Mr Zammit says he was told that his employment was terminated due to cessation of the (Seaforth) contract and operational reasons. That he may have been given unnecessary (or perhaps incorrect) reasons for his employment ending in addition to the end of his fixed term contract does not change the fact that his employment ended at the expiration of the fixed term contract and he could have been under no illusion, given the letter of 15 June 2015, that this was the reason his employment was to end.

Conclusion

[31] Mr Zammit was employed ‘under a contract of employment for a specified period of time…and [his] employment has terminated at the end of the period’ in accordance with the Act. For this reason Mr Zammit was not dismissed. He therefore is not eligible to make an application for unfair dismissal. The Commission does not have jurisdiction to deal with his application. It is therefore dismissed. An Order to this effect will be issued in conjunction with this decision.

COMMISSIONER

Appearances:

W. Zammit for himself.

L. Matarazzo of Lucio Matarazzo Pty Ltd for the Respondent.

Hearing details:

2015.

Melbourne and Darwin (video and telephone hearing):

October 15.

 1   Exhibit R2.

 2   Exhibit R3.

 3   Mr Zammit signed this letter, presumably in acknowledgement of receipt, on 23 June 2015.

 4   AW898078.

 5   [2010] FWA 3534.

 6   [2000] AIRC 1303.

 7   Exhibit A1.

 8   [2013 FWC 8890.

 9   Exhibit R2.

 10   Exhibit R3.

 11   [2013] FWC 8890, [47].

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