Contains issues that may form the basis of a jurisdictional issue
A genuine contract for a specified period may terminate by the passing of time at the end of the period rather than by termination at the initiative of the employer.[1]
In order to be a contract for a specified period of time the dates of commencement and completion of the contract must be unambiguous.[2]
If the contract gives either party an unqualified right to terminate the contract on notice, or with payment in lieu of notice, it will not be a contract for a specified time.[3]
A contract giving either party the right to terminate for a breach of the contract may still be a contract for a specified period of time.[4]
A contract may still be a contract for a specified period of time if it allows for review and extension by consent after a specified period of time.[5]
Where there has been a series of fixed-term contracts and renewal is a mere formality the Fair Work Commission may look beyond the terms of the contract to the reality of the employment relationship.[6]
The mere fact that an employer has decided not to offer a new contract of employment at the end of a time-limited contract which represents a genuine agreement by the parties that the employment relationship should come to an end not later than a specified date will not by itself constitute a termination at the initiative of the employer.[7]
However where the employment contract has a defined contractual term but does not exhibit an agreement that the employment relationship will come to an end when the term expires (as in the D’Lima[8] situation of a series of short-term standard-form contracts), a decision by the employer not to offer a further contract may become a relevant consideration as to whether there has been a termination at the initiative of the employer.[9]
[1] Explanatory Memorandum to Fair Work Bill 2008 at para. 1532.
[2] Andersen v Umbakumba Community Council (1994) 126 ALR 121, 125‒126 (von Doussa J).
[3] ibid., 126.
[4] ibid., (in passing).
[5] Ogilvie v Warlukurlangu Artists Aboriginal Association Incorporated, PR921908 (AIRC, Hampton DP, 28 August 2002) at para. 13; outlining the broad principles in Grycan v Table Tennis Australia Incorporated, Print R7452 (AIRCFB, Giudice J, Boulton J, Cribb C, 23 July 1999); Trigar v La Trobe University, Print T2860 (AIRCFB, Giudice J, Acton SDP, Gay C, 1 November 2000); and Pacific Rim Employment Pty Ltd v Lloyd, PR912882 (AIRCFB, Giudice J, Kaufman SDP, O’Connor C, 4 January 2002) at para. 20.
[6] Smith v Mareeba RSLA Services Club Inc [2013] FWC 351 (Spencer C, 15 March 2013) at paras 46–47; citing Banchit v St Mina’s Global Restaurants Pty Ltd, PR940477 (AIRC, Harrison C, 14 November 2003) at para. 39.
[7] Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162 (Hatcher VP, Colman DP, Saunders C, 8 December 2017) at para. 72; see also Griffin v The Australian Postal Corporation [1998] IRCA 15 (1 June 1998).
[8] D'Lima v Princess Margaret Hospital [1995] IRCA 446 (25 August 1995), [(1995) 64 IR 19].
[9] Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162 (Hatcher VP, Colman DP, Saunders C, 8 December 2017) at para. 74.