An ASU member, Jane* had her employment terminated reached, with the assistance of the ASU, a settlement as part of an unfair dismissal claim where the employer had been arguing that her termination occurred because a fixed term contract has expired. The case involved the employer arguing that whilst the contract itself did not specifically identify Jane’s employment as ‘fixed term’ it was clearly communicated to her the employment was for a twelve month period and her last day of work was on the anniversary of twelve months.
Under employment law an employee cannot make a claim for unfair dismissal or access mandatory severance payments if it can be shown that the employment was for a limited period and that the employment finished up on the date nominated as the expiry date. It is argued by employers and their advocates that a termination of employment has not occurred but rather the employment ceases because there has been an ‘effluxion of time’ due to the limited tenure of the contract of employment.
The ASU argued on Jane’s behalf that the employer had used the argument of a fixed term contract to avoid having to explore alternative work options or paying severance payments as the member could not recall being provided information about the job being for only a period of twelve months when she commenced and nothing in her contract of employment indicated that it was for a limited period. The ASU argued Jane had been unfairly retrenched as a result of a loss of a contract by the employer. As part of the process in an unfair dismissal a settlement was reached during a conciliation meeting.
RECENT CASE LAW:
Further to this there has been a recent decision from the Federal Court where it was deemed that in order for an employer to avoid redundancy payments they must ‘obtain’ acceptable alternative employment for a retrenched employee rather than merely ‘assist’ in getting them another job. The case concerned a contractor who was unsuccessful in its renewal of a tender and as such had to retrench around 50 employees. Whilst the contractor facilitated some discussions with the new successful tenderer about the redundant employees the Court deemed that the actions of the former employer were not enough to release them from severance payments obligations.
The Union has had similar complaints from other members. If you are about to be made redundant, contact the ASU office on 03 9342 3300 or via email (firstname.lastname@example.org) to make sure you receive the correct entitlements.
*Jane’s name has been altered for privacy reasons.