On 8 December 2017 a Full Bench of the Fair Work Commission significantly increased the rights of all Australian workers who are on fixed term contracts and who are terminated by their employer.
As briefly reported on in last Newsmonth, ELICOS member Saeid Khayam was terminated on 30 June 2016 after being employed by Navitas English initially as a casual employee, and later via a series of “outer limits” contracts over a period of 12 years. An outer limits contract is one which specifies a specific end date but which allows either the employer or the employee to terminate earlier with four weeks notice.
Saeid sought the IEU’s help when his contract ended and was told he would not be offered another. On behalf of Saeid, the Union made an unfair dismissal application with the Fair Work Commission (FWC). An essential requirement for running an unfair dismissal is that the termination has to be at the initiative of the employer.
The Union argued that Saied was terminated at the initiative of the employer and therefore there was a capacity to run an unfair dismissal case. The employer on the other hand argued that there was not a termination at the initiative of the employer, rather it was a termination that occurred as a result of effluxion of time.
In May 2017 the matter was heard before an FWC Commissioner, who found that there was no right to argue for unfair dismissal. The Commissioner’s decision was based on a decision of the commission’s predecessor from 2006 in a case referred to as Department of Justice v Lunn (“Lunn”). In Lunn, it was decided that if an outer limits contract employee is terminated on the last day of the period specified in the contract, then the termination is not at the initiative of the employer and the employee cannot seek a remedy for unfair dismissal.
In her decision, Commissioner Hunt identified that Saeid’s situation was unfair, but that the Lunn decision constrained her, stating:
“[133] It is no doubt inherently unfair that an employee with 11 years’ service on consecutive maximum-term contracts can have their employment end at a stated period of time due to the employer’s concerns relevant to the employee’s performance, without the employee having the opportunity to challenge the concerns."
"[135] By virtue of the maximum-term contract entered into between Navitas and Mr Khayam, he held fewer rights than a regular and systematic casual employee with at least six months’ service and a reasonable expectation of on-going work."
"[136] In the same way Hatcher VP in Jin was bound by the Full Bench authority in Lunn, so too am I, and accordingly I must find that in accordance with the authority in Lunn, there has not been a dismissal at the initiative of Navitas. Relevant to s.386(1)(a), the employment came to an end due to the effluxion of time.”
Saeid, again with the assistance of the Union appealed the decision to a Full Bench of FWC. The Union argued in lengthy submissions that Lunn no longer should be applied for a number of reasons involving complex arguments including that the law have changed with the introduction of the Fair Work Act in 2009. On behalf of Saeid, the Union argued that Navitas made a deliberate and considered decision to end the employment, whilst the employer continued to maintain that Saeid’s employment simply ended with the expiration of the contract. When the Full Bench handed down its decision it increased the rights for employees on outer limits contracts to be able to access the FWC so as to argue that they have been unfairly dismissed. Indeed the decision has created a series of new principles that are applied to such workers. The principles established in Khayam v Navitas English Pty Ltd [2017] FWCFB 5162 are now regularly referred to in unfair dismissal cases across Australia.
“Saeid in pursuing this matter has done the heavy lifting for his fellow teachers and Australian workers more broadly” said IEU Secretary John Quessy. “He has improved the protections and dignity afforded to a large group of Australian workers.”
Saeid agreed: “I am so glad a legal precedent which may help others is the end result. There’s so much movement away from people’s rights and the union movement nowadays. Many more people are being put on contract, so this kind of law is needed. I’m so grateful to the IEU for sticking with this case and supporting me all the way.”