Uncertainty of Dismissal – Worker Was Not Dismissed

The worker was employed as a full-time seasonal employee. He was working as part of the employer’s ski patrol team on a seasonal basis for 13 consecutive winters and prior to that worked for the employer as a volunteer member of the ski patrol team for two seasons.

His employment contract for the 2016 ski season contained the clause:

“You acknowledge that the Company does not warrant or represent that your employment will continue beyond Your Period of Seasonal Employment. However, if, for any reason, your employment does continue after Your Period of Seasonal Employment, then the terms of this letter will continue to apply with the exception of the above paragraph.”

On 21 December 2016, the employer an email explaining that he wouldn’t be offered a contract for the following ski season, or any further seasons, due to his repeated “discontent with our company policies, procedures, and management decisions including a lot of criticism of new patrollers, your colleagues, and supervisors.”

The employer submitted that the worker was employed on a seasonal basis. They further submitted that there was no decision to terminate the worker’s employment but rather it decided not to re-employ the worker and that as such there was no dismissal at the initiative of the employer. The employer also argued that there was evidence that the worker had been provided notice of termination and no evidence that the worker’s contract of employment had continued beyond 4 October 2016.

The employer said it made no promises of further work to the employee and that he was very familiar with this hiring process, reiterating that no one was hired “on the basis of a verbal agreement or a handshake.”

Conversely, the worker contended that he was assured that he would have continuing employment in 2017. He also submitted that the renewal of his seasonal contract each year was of a regular and systematic nature and that this did not change at the end of the 2016 ski season.

At the Fair Work Commission hearing, the worker submitted that as he worked beyond 3 October 2016 (the end date of his seasonal employment) his seasonal contract had become an ongoing contract as at 4 October 2016. It was also alleged that the employer said words to the effect of “see you next year and we will do this all again”, which constituted a verbal contract for continuing employment.

However, the FWC concluded that the evidence before them indicated that “the [Company’s] practice was to email its previous season employees to either advise that they would not be re-engaged or, alternatively, to offer re-employment. The FWC also noted that the worker’s seasonal contract of employment could not be extended under the Award, and that there was no clause which explicitly precluded a seasonal contract being extended by agreement.

On this basis, it was found that the worker was not terminated, therefore the employee’s claim was dismissed.

Written by Michael Turnell