Australian Broadcasting Corporation (ABC) claims there was no dismissal
The Fair Work Commission (FWC) recently dealt with an unlawful termination application filed by a worker against the Australian Broadcasting Corporation (ABC).
The worker alleged that her employment was unlawfully terminated on the grounds of "political opinion", "race", and "national extraction". The ABC raised two jurisdictional objections to the application, one of which was that it did not terminate the worker's employment.
In this case, the FWC had to determine whether the worker's employment was terminated at the ABC's initiative. The decision focused solely on this jurisdictional issue and did not delve into the reasons behind the alleged termination.
The worker, who had repositioned herself as a freelance journalist, content creator, commentator, and public presenter in 2022, sought to develop her own personal brand and work across various projects and audiences.
Background of the case
According to records, the worker had been employed by the ABC on a sporadic and irregular basis since May 2022. All of her work engagements at the ABC were on a casual basis, with her last engagement being in December 2022.
Before her engagement in December 2023, the worker had presented on an ABC weekly digital radio program for six weeks in May 2022, filled in as a presenter for the ABC's "Sydney Afternoons" and "Evenings" radio programs, and hosted the ABC's "Summer National Mornings" program in December 2022.
In November 2023, nearly a year after her last engagement with the ABC, the worker was contacted by the ABC's Sydney Content Director to fill in as a presenter on the "Sydney Mornings" radio program for five consecutive weekday shifts, commencing on 18 December 2023.
The terms and conditions of her employment were discussed via email exchanges, and the worker agreed to be bound by the ABC's standard casual employment contract.
The casual employment contract
The worker accepted the casual employment contract on 27 November 2023, more than two weeks before the scheduled studio refresh and segment planning session on 14 December 2023.
The contract outlined the terms and conditions of her engagement, including the basis of engagement as a casual employee, payment details and entitlements, compliance with the ABC values and policies, external work and conflict of interest, and termination conditions.
The contract also included a notice of the right to seek conversion to ongoing employment, as provided for in the National Employment Standards under the Fair Work Act 2009 (Cth).
The worker conceded that the casual employment contract applied to her in respect of her engagements at the ABC on 14, and 18 to 22 December 2023.
The ABC's management and decision-making structure
The FWC decision provided an overview of the ABC's hierarchical structure relevant to the case. The chief content officer, who reports directly to the ABC managing director, has overall responsibility for ABC Radio Sydney. The head of audio content and others have direct management responsibility for ABC Radio Sydney.
The acting head of Capital City Networks oversees and manages the operation of all the ABC's Australian capital city radio stations, while the acting manager of ABC Radio Sydney is responsible for its day-to-day management.
The content director of ABC Radio Sydney, who the worker reported directly to, oversees and manages the production teams of each ABC Radio Program in Sydney.
The evidence also revealed that the acting head of Capital City Networks, upon the recommendation of the content director and after consulting up and down the ABC hierarchy, approved the engagement of the worker to replace the regular presenter during her absence on the "Sydney Mornings" program between 18 and 22 December 2024.
The parties’ arguments
The ABC contended that the worker's employment was not terminated at its initiative, but rather came to an end by effluxion of time. As stated by the ABC's legal representative:
"The task that the Commission has at this stage of the proceedings is to ascertain whether the statutory concept of termination of employment at the initiative of the employer is satisfied in this case; is engaged by the Applicant's substantive application. That will entail making findings of fact about how [the ABC] objectively conducted itself towards the [worker] in a way that was manifest to or communicated to [her], and then making an assessment of its own about the legal effect of what was said and done of those objective facts. That's the only task."
The worker, on the other hand, argued that her employment was unlawfully terminated by the ABC on the grounds of "political opinion", "race", and "national extraction".
The FWC’s findings
The FWC examined the evidence presented, including the worker's employment history at the ABC, the terms of the casual employment contract, and the ABC's management and decision-making structure.
The Commission noted that:
"The [worker] concedes that the casual employment contract applied to her in respect of her engagements at the ABC on 14, and 18 to 22 December 2023."
The FWC also considered the ABC's employment and remuneration records, which showed that the worker continued to be employed by the ABC as a casual employee, with an end date specified as 8 December 2024.
The head of people services and remuneration provided uncontested evidence that:
"The ABC's employment and remuneration records for the [worker] do not show that [she] has been terminated (or dismissed), on 20 December 2023, or otherwise. Rather, the ABC's employment and remuneration records show that the [worker] continues to be employed by the ABC a casual employee."
Furthermore, the FWC found that the worker's computer network account, email address, and security pass at the ABC remained active, although her security pass was temporarily disabled due to security concerns related to active protests taking place outside ABC buildings.
The worker had also been paid her full wages for her shift on 14 December 2023 and for the period 18 to 22 December 2023, despite not attending the workplace on 21 and 22 December 2023.
Terminated at the employer’s initiative
However, the FWC determined that the worker's employment relationship with the ABC was terminated at the ABC's initiative on 20 December 2023, during the meeting that took place on that day.
The Commission relied on several key points in making this ultimate finding:
- The employment relationship in question concerned the December engagement, which was governed by the terms of the casual employment contract, including the engagement change term.
- The outcome of the 20 December meeting was that the worker would not perform any further work or service for the ABC in respect of the remainder of the December engagement.
- The worker was advised that a decision had been made by the ABC to take her off-air for her remaining two shifts, and she was not allocated any further work. Additionally, she was asked to politely leave the ABC premises, effectively relieving her of performing any further work or service for the remainder of her shift that day.
The FWC addressed the ABC's argument that the December engagement simply came to an end by way of the effluxion of time on 22 December 2023, in accordance with the terms of the casual employment contract, and that the worker being taken off-air was a valid exercise of the engagement change term.
However, the Commission noted that:
"The difficulty is that even if both of these propositions are true, the [worker’s] service in her relationship with the ABC ended when she was taken off-air and allocated no further work to do, which on the objective facts of this case, gave rise to the [her] no longer being in the service of the ABC, terminating the employment relationship."
The FWC also emphasised that the focus is upon at whose initiative the employment relationship was ended, rather than the precise means by which it ended, citing Perram J's statement in Quirk:
"[Section] 386(1)(a) of the Act 'does not require the [ABC] to pull the trigger but only load the gun'."
Furthermore, the Commission noted that the ABC did not reply to the worker's email seeking clarification on her employment status, and that the content director's parting words about potentially having the worker back did not give rise to any inference that she remained employed by the ABC, as the acting head of Capital City Networks, who holds the authority to make decisions about engaging temporary or fill-in presenters, gave no evidence to that effect.
While the FWC considered the evidence provided by the head of people services and remuneration regarding the status of the worker's employment on the ABC's software programs and systems, the lack of adherence to ordinary termination procedures, and the worker's continued possession of a deactivated building pass and access to some ABC computer systems, the Commission ultimately found that this evidence was not decisive in the context of the events that had transpired.
In light of the finding that the worker's employment was terminated at the ABC's initiative on 20 December 2023, the FWC directed the parties to request assistance for a private conference.
