Kirsten Dale v Hatch Pty Ltd [2016] FWCFB 922 (15 February 2016)

Under section 386(2)(a) of the Fair Work Act, a person will be excluded from the unfair dismissal jurisdiction if they are employed under a contract for a ‘specified task’ and their employment is terminated at the end of that task.

However, just what that means has been the source of some uncertainty for employers. A recent decision provides some clarity.

In Kristen Dale v Hatch Pty Ltd [2016] FWCFB 922, the employer sought to rely on section 386(2)(a) and objected to the employee’s unfair dismissal claim on the basis that she had been employed for a ‘specified task’.

The employee’s contract stated she was to “provide support” on a specified project for a third party until the employee’s “demobilisation” from the project. The employee’s employment was terminated when the third party no longer required the employee’s employer to provide someone (ie. the employee) to perform the services.

The following question arose: was the employee employed for a ‘specified task’ (so that she was excluded from the unfair dismissal jurisdiction)?

At first instance, it was held by Deputy President Asbury that a ‘specified task’ is “synonymous with the terms role, job or project” and that, therefore, the employee was employed for a specified task, being the task of “carrying out the administration role” on the (third party’s) project. The Deputy President therefore upheld the jurisdictional objection and dismissed the claim.

However, on appeal, it was held that the employment contract did not specify, nor did it provide for the termination of employment upon completion of, any such task. While both parties accepted that the contract provided for termination of employment upon the third party no longer requiring the employee’s employer to provide the services (for which the employee was employed to provide), these grounds for termination were not connected to the completion of a specific task.

This decision clarifies that a ‘position’ or ‘role’ is not equivalent to a ‘task’, nor is the abolition of a position or role indicative of completion of a task. Only if there is a distinct or clearly identifiable task to be performed, or a specific outcome to be achieved, will an employer be able to engage an employee for a ‘specified task’.