The Commission has determined that an employee's contract ended at the initiative of the employer, finding that the Commission has jurisdiction to hear and determine the unfair dismissal application.

Background

The applicant was initially employed on a full-time basis under a fixed term contract by WA Country Health Service (WACHS) as a Cook. At the expiry of the full-time contract, the applicant accepted a second contract from the respondent for casual employment for a fixed period of three month from 25 May 2020 to 25 August 2020. Both of the applicant’s employment contracts were covered by the WA Health System – United Voice WA – Hospital Support Workers Industrial Agreement 2017 (Industrial Agreement).

The applicant received an email from the respondent on or about 21 August 2020 confirming that her contract was at an end as of 25 August 2020 and that no further shifts would be provided to her. On 13 October 2020, the applicant filed an application for unfair dismissal against the respondent, 21 days out of time.

Contentions

The applicant appeared to accept that her engagement was pursuant to a three-month contract. However, she sought an explanation as to why she was offered a three-month contract when the casual position was advertised as an 18-month contract.

The grounds for the applicant’s application comprised a general list of grievances against the respondent in relation to matters arising in the course of employment, rather than addressing whether there was a dismissal, and if so, the fairness of it.

The respondent asserted that the applicant was appointed under a fixed term contract, which ended with the effluxion of time. The respondent contended that there was no dismissal and consequently, the Commission had no jurisdiction to hear or determine the matter under s 29(1)(b)(i) of the Industrial Relations Act 1979 (WA) (IR Act).

Findings

The Commission first considered the effect of the terms of the Industrial Agreement on the applicant’s employment contract. The Commission outlined that under the Industrial Agreement, the applicant’s employment must be categorised as either casual or fixed term, but it cannot be in both categories. As the applicant was engaged and paid on a casual basis, her employment was casual, thus excluding the possibility that it was fixed term.

Further, the Commission noted that the IR Act provides that contractual fixing or limiting of time for the end of the contract is of no effect, to the extent that it is inconsistent with the Industrial Agreement. Accordingly, there can be no agreed term limiting the length of the applicant’s employment.

The Commission determined the applicant’s employment did not end by the effluxion of time, but at the respondent’s initiative. Therefore, there was a “dismissal” for the purposes of the IR Act and the Commission had jurisdiction.

The Commission considered whether to grant the applicant leave to make her unfair dismissal application out of time. Given the applicant’s employment was determined not to be fixed term, and her employment did not terminate by the effluxion of time, the respondent had ultimately dismissed the applicant for misconceived or erroneous reasons. Considering the merits of the case, the Commission granted the applicant leave to make her unfair dismissal application out of time.

The decision can be read here.