An interlocutory decision by the Australian Industrial Relations Commission serves as a critical warning for employers attempting to use project-based transfers to shield themselves from unfair dismissal claims.
The jurisdictional hearing focused on whether an employee transferred interstate for a specific project was engaged on a brand-new, fixed-term contract or if their employment was a seamless continuation of their existing role.
The Incident: From Casual to Full-Time to Interstate Transfer
The employee went through a series of internal movements within the company’s maintenance department, starting as a casual worker before being promoted to a full-time position subject to a three-month probationary period.
Near the end of that probation, the company offered the worker a role in Western Australia to work on a specific three-month project. When the employment relationship subsequently broke down, the worker lodged an unfair dismissal application.
The employer immediately raised a jurisdictional objection to dismiss the claim. They argued that the Commission lacked jurisdiction because the worker had transitioned to a strict “contract for a specified period of time and task,” which would legally exclude them from bringing an unfair dismissal claim under the legislation of the time.
The Operational Conflict: “New Project” vs. “Secondment”
The employer argued that at the end of the full-time probationary period, the original contract was intentionally not renewed. Instead, they asserted from the bar table that a completely separate contract was formed for the Western Australian project.
However, the worker strongly contested this version of events, stating there was never a discussion about ending his employment—only about continuing his work on a special project over in Perth.
Crucially, the worker’s representative tendered a pivotal piece of evidence: a handwritten note signed directly by the company’s Managing Director. The letter explicitly stated:
“This letter is confirmation of a three month secondment to Perth as a full-time maintenance position.”
While the company’s formal typed offer of employment omitted the word “secondment,” the Commission placed significant weight on the handwritten document from the Managing Director. Furthermore, the typed document itself showed a flexible finish date “by negotiation,” which contradicted the rigid nature required of a strict fixed-term contract.
The Commission’s Ruling
The Commission found that the employee’s service was entirely seamless. The company’s use of the word “secondment” in writing strongly implied that the worker was temporarily reassigned within his ongoing employment rather than terminated and rehired under a restrictive, fixed-term framework.
Because the employer failed to prove that a completely separate, standalone fixed-term contract was created, the Commission dismissed the employer’s jurisdictional objection. The matter was ruled to be well within jurisdiction and allowed to proceed forward to be dealt with on its merits.
Key Takeaways for Employers
- Handwritten Notes are Binding: Internal correspondence or quick notes provided to staff by senior executives carry immense legal weight. If a Managing Director writes “secondment,” a tribunal will likely interpret the arrangement as a continuation of employment.
- Beware of “Flexible” Fixed Terms: If you intend to hire someone strictly for a specified task or time frame to exclude them from termination claims, the dates and scope must be precise. Adding clauses that allow the dates to change “by negotiation” undercuts the argument that the contract is strictly fixed.
- Maintain Clear Documentation: Do not rely on verbal assertions at the bar table to argue that an employee understood their original contract had ended. Ensure every transition or contract conclusion is explicitly documented and signed off by both parties.
Key Case Details
- Case Number: U2005/6550 (Decision PR967651)
- Commission Member: Commissioner Eames
- Applicant’s Representative: Mr A. Dircks
- Respondent’s Representative: Mr R. Baker
Categories & Tags
- Categories: Jurisdictional Objections, Contract Interpretation
- Tags: Unfair Dismissal, Fixed-Term Contracts, Secondment, Specified Task, Continuity of Service, Jurisdictional Hearing Granted
This summary is provided for informational and educational purposes only. It does not constitute legal advice.