FWC: Employer argues she was fully informed of consequences of changing roles
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case filed by a worker against their employer, a ports corporation.
The worker alleged that she had been unfairly dismissed from her employment and sought reinstatement, compensation for lost wages, and damages.
The FWC's decision sheds light on the importance of clear communication and understanding between employers and employees regarding the nature of their employment arrangements.
Background of the case
The worker started her employment with the employer on 9 September 2013 as a company secretary. From 5 October 2021, the worker's employment was covered by their enterprise agreement, which took effect in 2020.
As of 5 December 2022, the worker's “substantive role” was that of deputy company secretary, and she was also discharging the role of company secretary on an interim basis, holding a temporary appointment as acting company secretary.
Following concerns raised by the worker regarding her workload, the employer provided her with two alternatives on 7 December 2022.
The options were either to relinquish her substantive role, leaving her without a permanent substantive role and only a temporary role as acting company secretary, or to cease her acting company secretary secondment and maintain her current permanent substantive role.
The worker chose the first option, relinquishing her substantive role and taking on a temporary role. On 6 March 2023, the employer offered the worker the temporary role of senior corporate advisor to the Board, which she accepted. The offer stated that the role would involve an extension to 31 December 2023.
Unfair dismissal claim
On 15 December 2023, the employer wrote to the worker confirming that her employment would come to an end on 31 December 2023.
The worker then filed an unfair dismissal claim with the FWC, arguing that her dismissal was harsh, unjust, or unreasonable.
The employer objected to the application, stating that the worker was not dismissed on the initiative of the employer but rather that the employment came to an end at the period specified in a maximum term contract.
The FWC's considerations
During the hearing, the FWC considered various factors to determine whether the worker had been unfairly dismissed.
The key points of contention were whether the worker's employment was terminated at the initiative of the employer or whether the employment relationship came to an end as a result of the expiration of a time-limited contract.
The employer argued that the worker had elected to forego her permanent position and had been advised that her appointment as acting company secretary was coming to an end.
They maintained that the worker's employment was subject to a time-limited contract that expired on 31 December 2023.
On the other hand, the worker contended that her employment remained ongoing, regardless of the letters regarding her role.
She drew a distinction between her role and her employment, stating that the expiration of a role did not necessarily equate to the termination of her employment.
The FWC’s decision
After considering the evidence and arguments presented by both parties, the FWC found that the worker's employment had indeed come to an end due to the expiration of a time-limited contract.
The FWC accepted the employer's argument that the worker had relinquished her substantive role and had accepted a temporary position with a specified end date.
The Commission noted that the employer had clearly communicated the consequences of the worker's choice to forego her permanent role and accept a temporary position.
In the decision, the FWC emphasised the importance of clarity in employment arrangements, stating:
"The [employer] submitted that simply because termination can be other than at the initiative of the employer, such as the termination by the effluxion of time or some decision by the [worker] to end, this does not preclude that the contract came to an end."
The FWC also highlighted the distinction between a role and employment, as evidenced by the management’s testimony:
"[The management] expressed that a ‘role’ and a ‘position’ are mutually exclusive and hypothesised that if the [worker] had maintained her substantive position, then she would have retained her certainty of a permanent substantive role."
Ultimately, the FWC concluded that the worker's employment had not been unfairly terminated, as it had come to an end due to the expiration of a time-limited contract.
