{"id":686,"date":"2018-04-08T23:05:01","date_gmt":"2018-04-08T23:05:01","guid":{"rendered":"https:\/\/www.olexo.com.au\/full-bench-decides-against-established-authority-in-ruling-a-termination-refers-to-the-cessation-of-the-employment-relationship-and-not-the-employment-contract\/"},"modified":"2018-04-08T23:05:01","modified_gmt":"2018-04-08T23:05:01","slug":"full-bench-decides-against-established-authority-in-ruling-a-termination-refers-to-the-cessation-of-the-employment-relationship-and-not-the-employment-contract","status":"publish","type":"post","link":"https:\/\/workn.net.au\/?p=686","title":{"rendered":"Full Bench decides against established authority in ruling a termination refers to the cessation of the employment relationship and not the employment contract"},"content":{"rendered":"

Published 8 April 2018<\/em><\/p>\n

In a recent case, Khayam v Navitas English Pty Ltd t\/a Navitas English<\/i>, the Fair Work Commission Full Bench found the Commissioner at first instance did not consider all relevant circumstances and the appeal was upheld.<\/p>\n

Mr Khayam was employed by Navitas in 2005 as a casual employee. In April 2012, he was offered employment as a \u201cfixed-term teacher\u201d until 30 June 2013. The letter allowed either party to terminate the contract prior to 30 June 2013 by providing 4 weeks\u2019 written notice. Mr Khayam accepted the offer.<\/p>\n

When the contract ended, Mr Khayam accepted an offer of employment with terms similar to the previous fixed-term contract. This contract was to expire on 30 June 2014. Mr Khayam was offered and accepted a third \u201cfixed-term\u201d employment contract from 1 July 2014 to 30 June 2016. Similarly to the other 2 contracts, this contract allowed either party to terminate the contract by providing 4 weeks\u2019 written notice.<\/p>\n

On 31 May 2016, Mr Khayam was informed that he would not be offered another full-term contract because of disciplinary and performance issues. His employment ended at the cessation of the contract on 30 June 2016.<\/p>\n

Mr Khayam claimed he was unfairly dismissed and argued he was dismissed at his employer\u2019s initiative pursuant to s 386(1)(a) of the Fair Work Act<\/i>.<\/p>\n

Navitas conversely argued they did not dismiss Mr Khayam, rather his employment contract came to an end and they chose not to reemploy him.<\/p>\n

Decision at first instance<\/u><\/p>\n

Commissioner Hunt dismissed the application, finding the employment contract was \u201cclear and unambiguous\u201d and would end on 30 June 2016 unless terminated earlier. Navitas was not required to perform any positive act to end the contract other than providing notice to Mr Khayam that there would be no further contract.<\/p>\n

The application was found not to fall under s 386(1)(a) of the Fair Work Act <\/i> pursuant to the Full Bench decision in Department of Justice v Lunn<\/i>.<\/p>\n

Decision on appeal<\/u><\/p>\n

The Full Bench reviewed the decision in Department of Justice v Lunn<\/i> and found the approach taken by the Bench in the interpretation of the meaning of \u201ctermination of employment at the initiative of the employer\u201d was not \u201cstated in a correct or complete way\u201d. They therefore found they were not restricted to follow the decision in this case.<\/p>\n

It was held by the Full Bench that a \u201ctermination at the initiative of the employer\u201d was determined by reference to the employment relationship being terminated, and not merely the contract of employment being terminated. The distinction was noted to be important when an employment relationship is made of several, sequential time-limited contracts and the termination occurred at the end of these. In such a case, it may be necessary to consider \u201cthe circumstances of the entire employment relationship, not merely the terms of the final employment contract\u201d.<\/p>\n

The majority of the Full Bench upheld the appeal and referred the matter back to Commissioner Hunt for redetermination.<\/p>\n

Key issues for employers<\/u><\/p>\n

This case provided a new interpretation of the meaning of \u201ctermination at the initiative of the employer\u201d. Employers should be aware that \u201ctermination at the initiative of the employer\u201d refers to termination of the employment relationship and not merely termination of an employment contract. As a result, where an employee is on a series of fixed-term contracts and their employment is terminated or the contract expires and is not renewed, the employment relationship as a whole may be considered.<\/p>\n

Read the full decision here<\/a><\/p>\n

\n

This content is general in nature and provides a summary of the issues covered. It is not intended to be, nor should it be relied upon, as legal or professional advice for specific employment situations.<\/p>\n

Working Knowledge recommends that specialist legal advice should be sought about specific legal issues.<\/p>\n","protected":false},"excerpt":{"rendered":"

Published 8 April 2018 In a recent case, Khayam v Navitas English Pty Ltd t\/a Navitas English, the Fair Work Commission Full Bench found the Commissioner at first instance did not consider all relevant circumstances and the appeal was upheld. Mr Khayam was employed by Navitas in 2005 as a casual employee. In April 2012, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[201],"tags":[],"_links":{"self":[{"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/posts\/686"}],"collection":[{"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/workn.net.au\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=686"}],"version-history":[{"count":0,"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/posts\/686\/revisions"}],"wp:attachment":[{"href":"https:\/\/workn.net.au\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=686"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/workn.net.au\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=686"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/workn.net.au\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=686"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}