No “dismissal” on expiry of a fixed term contract capable of early termination (Alouani-Roby v NRL)

Background

The appellant was employed by the respondent (NRL) as a professional rugby league umpire between February 2015 and November 2020 pursuant to a series of consecutive fixed term contracts. In June 2020, the appellant was informed that the NRL would not renew his tenure after his then contract expired in November 2020. That transpired and the appellant did not work as an NRL umpire again.

The appellant claimed that he was dismissed under Pt 3-1 of the FW Act (General protections) in circumstances that amounted to adverse action. In order to commence court proceedings, s 370 required that he first obtain from the FWC a certificate under s 368(3)(a) (Dealing with a dismissal dispute (other than by arbitration)).

The appellant did not obtain such a certificate, in part, because he failed to establish that he had been “dismissed”: s 386(1), FW Act. He failed in his appeal to a Full Bench of the FWC and, subsequently, in an application for judicial review by a single judge of the Federal Court (Primary Judge). He appealed from the decision of the Primary Judge to the Full Court.

Decision

Among other things, it was accepted by the Primary Judge that s 386(2)(a) of the FW Act (which excludes a contract of employment for a specified period of time from the meaning of “dismissed”) applies to outer limit contracts that allow for early termination where the employee’s employment is terminated by the end of the specified period of time.

After reviewing predecessor legislation, the Full Court found that the Primary Judge did not err in this regard. The Full Court observed ([49]-[56]) —

“The concluding words in which s 386(2)(a) [of the FW Act] is expressed very clearly disclose that the statutory conception of “a contract of employment for a specified period of time” is apt to include fixed-term contracts that are terminable otherwise than by the expiry of their fixed terms. At least for present purposes, a contract of employment that is expressed to terminate upon the expiry of a nominated term is a contract for a specified period of time; and it is no less so merely because it reserves for the parties other modes of earlier termination.”

Key takeaways

A fixed term contract of employment that is capable of early termination will be a contract of employment for a specified period of time for the purposes of s 386(2)(a) of the FW Act where the employment terminates by the expiry of the fixed term. An employee in those circumstances will not be dismissed as defined in s 386(1) and, therefore, will not be entitled to apply to the FWC to deal with a general protections dismissal dispute (s 365); or, by extension, for an unfair dismissal remedy (ss 385, 386(1) and 394(1)).

Read the full text of the court’s judgment here: Alouani-Roby v National Rugby League Ltd [2024] FCAFC 161

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