Warren George Francis v Volunteer Marine Rescue Assoc Qld Inc [2024] FWC 978 (16 April 2024)

Facts

• A training officer employed by Queensland’s Volunteer Marine Rescue (“VMR”) filed an adverse action claim against his employer for dismissing him 2 weeks before his fixed term contract ended by communicating to him that they wouldn’t be renewing his contract.
• The officer started with the employer in 2021 initially on a 6 month contract and signed another contract with the employer for a further 1 year commencing in July 2021. The officer signed a further 1 year contract more than 5 months after the contract commenced, with the employer backdating the contract to 1 July 2022.
• At the time, the officer was told that he was one of 5 employees at VMR that were signed to fixed term contracts in anticipation of a merger with another volunteer organisation (Marine Rescue Queensland).
• 1 month after the last contract was signed, the employer launched an investigation into whether the officer “threatened violence” against the vice president of the northern zone while on a phone call its president. He was suspended on full pay pending the outcome of the investigation.
• On 14 June 2023 , the training officer received a letter from the general manager stating that the investigation revealed the allegation from the president couldn’t be substantiated, however, it also “revealed a level of tension between [the officer] and [the Northern Zone president] which is highly undesirable”.
• Two days later on June 16, the training officer was told in writing that VMR had decided not to extend his contract beyond the expiry of the term.

Findings

• The training officer understood that the role would continue past the expiry of the final contract until the transition to the Marine Rescue Queensland eventuated. He said in the context of the 2 letters sent by VMR on 14 and 16 June 2023, he had been dismissed by VMR on 16 June. VMR on the other hand argued that the contract ended due to the effluxion of time.
• The FWC agreed with the training officer that the evidence pointed to a reasonable expectation of the employment relationship continuing past 30 June 2023.
• VMR said that the use of fixed term contracts within the organisation was due to the uncertainty of funding from the State government from year to year. While they stated that they didn’t renew the training officer’s contract due to uncertainty around continuing funding, the FWC found that this wasn’t substantiated given VMR was advertising the same role on Seek.
• The FWC found that when the final contract was signed, both parties did not genuinely expect for the employment relationship to end at the expiry of the term, except in the case where funding wasn’t secured. In support of this, the Commissioner pointed to the fact that VMR provided the officer with the final contract 3 months after the contract was to commence and the officer only signed it 5 months after it commenced. This highlighted that the parties expected the employment relationship to continue, even in the absence of a current contract, unless VMW did something to sever the relationship.
• The Commission also said that, interestingly, the employment contracts stated that after each of the outer-limit terms (of 30 June 2022 and 30 June 2023), the employer and employee may elect to renew the contract. It held that the employer’s early move on 16 June 2023 to communicate to the officer that the contract wouldn’t be renewed was evidence of the employer taking steps to sever the employment relationship.
• The FWC concluded that the officer did not voluntarily leave the employment relationship, and the end of the employment was on the initiative of the employer by not offering another contract for the role for which they were confident of the funding for. The officer was allowed to proceed with his adverse action application.

Lessons for Employers

• If you have fixed term contract employees and are not seeking to renew their contract for an additional term, caution must be taken about communicating this to them prior to the expiry date of the contract, especially if their renewal term is worded in a way that requires a process to be followed. If you would like to have your employees’ fixed term contracts reviewed or to find out if there’s a process to be followed to renew or not renew their contract, contact us to discuss.
• Employees on multiple successive fixed term contracts may no longer be considered fixed term employees – there might be a continuing employment relationship that forms based on one or more of the parties’ expectations of continuing employment. This means that employers are not necessarily protected from unfair dismissal or adverse action claims from fixed term employees just because their contract lapses.
• From 6 December 2023, the Fair Work Commission introduced new rules for new fixed term contracts after that date which could mean that those contracts don’t end at their expiry date. For more information on this and how this affects any new fixed term employees, read our article on it or contact us.

If you would like to discuss these or other workplace issues, please contact Andrew Bland or call 02 9412 3077.