Hypotheticals by Manny Wood. Published in the Coffs Coast Advocate on 7 April 2018.
Graham worked for Babel Fisher Pty Ltd, teaching Spanish language classes. Graham was initially employed on 1 April 2015, as a full-time teacher under a 12-month fixed-term contract.
On 1 April 2016, when Graham’s contract expired, it was renewed for another 12-months, then again for a further 12-months on 1 April 2017.
In March 2018, Graham is informed by his manager that his contract was not going to be renewed, as there had been concerns about his performance.
Graham was not told what the performance concerns were and was not given an opportunity to respond to those concerns. Graham challenged the decision in the Fair Work Commission, alleging he had been unfairly dismissed.
At the hearing, Babel Fisher Pty Ltd argued that Graham was not protected from unfair dismissal because he had reached the end of his fixed-term contract and had, therefore, not been dismissed. This was consistent with previous decisions of the Commission.
After considering the facts, the Commissioner decided not to follow the former decisions of the Commission and found in Graham’s favour.
Instead of focussing solely on the employment contract, the Commissioner found the correct approach was to consider the “employment relationship” between the employer and the employee.
The Commissioner said it was “inherently unfair that Babel Fisher Pty Ltd could end the employment of an employee on consecutive fixed-term contracts due to their concerns about the employee’s performance, without the employee having the opportunity to challenge the concerns.”
As Graham did not seek reinstatement, the Commissioner ordered Babel Fisher Pty Ltd to pay compensation to Graham.
If you would like Manny to address a particular legal issue, send your request to manny.wood@ticliblaxland.com.au or call him on (02) 6648 7487.
