ARTICLE · 20 JANUARY 2018

Outer-limit contracts no longer a sure thing

DWF (Australia)

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Drafters of outer-limit contracts should refer to the principles discussed in this case when drafting these contracts.

AustraliaEmployment and HR

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Traditionally, when an "outer-limit" contract expired the Fair Work Commission frequently took the view that this was not a termination at the initiative of the employer, such that there was no "dismissal" to attract the unfair dismissal jurisdiction. The soundness of this view has been overturned by the very recent decision of the Full Bench of the Commission in Saeid Khaym v Navitas English Pty Ltd trading as Navitas English (C 2017/2976)).

Legislation

Section 386 of the Fair Work Act 2009, provides inter alia:

A person has been dismissed if:
1. the person's employment with his or her employer has been terminated on the employer's initiative.

However, a person has not been dismissed if:

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