No Charity from FWC for Ambiguous Paperwork

Ms Kirsty Fraser v Act for Kids [2016] FWC 5052 (27 July 2016)

A charity has had its jurisdictional argument thrown out in an unfair dismissal case in the Fair Work Commission, with the decision hinging on the lack of definition in the initial offer of employment. Despite an offer letter spelling out the start and end dates of the employment, the FWC found there was room for a different interpretation.

The matter arose when the employee filed an unfair dismissal claim, and the employer produced a document which it said proved the job was only ever for one year. But the employee (with whom the FWC ultimately agreed) argued that the offer letter used the words “your employment will be full time from …. to …”, leaving the door open to alternative forms of employment, such as part time or casual, after the end date.

The employee also pointed to inconsistencies in her letter of offer. If in fact the role were to be fixed, for example, why did it contain a standard Notice clause which included a table based on ‘years of service’ – something that would be irrelevant to a one year fixed term?

The employer argued this was not what had been discussed at interview or intended, the job area was new to the charity and the words in the offer letter meant the job would finish at the end date. Additionally, the employer advised that all such staff were engaged on this proviso because, being a charity and a new assignment, it could not rely on funding for longer periods, something that is widespread and common in the sector.

But the FWC was unmoved, and sent the matter off to be determined as a dismissal, not the end of the contract due to the effluxion of time.

This decision highlights why it is important to avoid template documents in this area. It was clear that the letter of employment had provisions in it which would ordinarily not apply to a fixed term employee. The same applied to the job advertisement which did not indicate the fixed term nature because the employer used a template for its other type of jobs which were not fixed term.

It might seem harsh that the tribunal has decided to act on the documentation rather than the performance and facts on the ground which it often does when there’s a dispute about a contract term. However employment contract documentation is fundamental to establishing the rights and obligations of the parties and ought to be clear enough for people to understand what it is they’re signing up to.