The Fair Work Commission has held that a fixed term employee sacked before the specified end date in their contract was entitled to pursue remedies for unfair dismissal.

The employee was hired on a fixed term contract that was specified to end on 30 June 2013.  However, due to a breakdown in the relationship, the employee stopped performing work for the employer on 30 May 2013, but was still paid wages for the remainder of the term of the contract.  The employee claimed that she had been unfairly dismissed.

The Fair Work Act states that an employee is not “dismissed” where “the person was employed under a contract of employment for a specified period of time … and the employment has terminated at the end of the period” (Fixed Term Exemption).  However, the Commission found that the employee had been dismissed on 30 May 2013, before the fixed term contact’s specified end date:

The contract of employment therefore did not conclude by the effluxion of time, or at the end of the time specified in the contract... the [employee’s] employment or engagement concluded at an earlier time, and because of the unilateral intervention of the employer.  This intervention must be characterised as a dismissal.

Therefore, the Commission held that the unfair dismissal jurisdiction in the Fair Work Act was enlivened.

Key points for employers:

  • Even where an employee is hired on a fixed term contract that falls within the Fixed Term Exemption, if the employee is sacked before the specified end date, unfair dismissal remedies may be available where the employee meets the other requirements in the Fair Work Act.
  • If an employment contract contains a term for early termination (on whatever terms), if the contract nonetheless ends “by the effluxion of time”, it will still fall within the Fixed Term Exemption.

A link to the decision can be found here: Miss Eleanor Downes v The Uniting Church in Australia Property Trust (Q.) T/A Wesley Mission Brisbane [2013] FWC 8890