Simultaneous maximum term contracts do not result in unfair dismissal access

Simultaneous maximum term contracts do not result in unfair dismissal access.png

Simultaneous maximum term contracts do not result in unfair dismissal access

A confectionary worker, engaged on a series of maximum term contracts over a two and a half year period, has been refused permission by the Fair Work Commission to pursue an unfair dismissal claim. The Commission accepted the employer’s primary submission that no termination of employment had actually taken place.

His employer, Mondelez Australia Pty Ltd (Mondelez), manufactures and sells chocolate and other confectionary items across Australia and New Zealand, with five manufacturing plants in Australia. The employee’s first contract was in July 2018, although he had previously worked at a Mondelez plant through a labour-hire agency.

Mondelez claimed that the employee had not been terminated within the meaning of the Fair Work Act 2009. Rather, the employment relationship ended through the effluxion of time upon the expiry of a maximum term contract.

His initial maximum term contract was from 2 July 2018 to 7 October 2018. He then was employed under the following contracts: a 3-month maximum term contract from 8 October 2018 to 25 November 2018, a 12-month maximum term contract from 26 November 2018 to 22 November 2019, a 3-month maximum term contract from 23 November 2019 to 22 February 2020, a 3-month maximum term contract from 23 February 2020 to 23 May 2020, a 1-month maximum term contract from 24 May 2020 to 23 June 2020, a 3-month maximum term contract from 24 June 2020 to 24 September 2020, and a final 3-month maximum term contract from 25 September 2020 to 31 December 2020.

Each contract articulated a relevant expiry date, with various clauses such as “temporary for the maximum period” and “on the basis that there can be no guarantee of employment beyond that period”. Several of the contracts involved the worker working at different branches of the business or working different shifts.

In the middle of December 2020, he was told that he would not be offered a further contract. The employer maintained that this was due to seasonal factors and that no other work was available for him. Several other workers on similar arrangements suffered the same fate.

Deputy President Janine Young rejected the worker’s submission that his employment was continuous and ongoing. She stated that the worker,

“had read each of the contracts…and understood that employment under each of the contracts…was for a maximum period of time”. She also said, based on the evidence presented, that there was no doubt the worker understood his employment would cease at the end of each employment contract with no guarantee of further employment.

Further, she rejected his submission that the contracts were merely for `administrative convenience’ and simply `rolled over’.

In determining he was employed pursuant to a series of maximum term employment contracts, his application was dismissed.

M N v Mondelez Australia Pty Ltd (U2021/569) 1 July 2021

For questions about employment contracts, term arrangements, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 WAL LAW, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

Related Articles

Workforce Advisory Pty Ltd ACN 625359980 Phone 1300 925 529, 07 3607 3850 Email Office@workforceadvisory.com.au
Liability limited by a Scheme Approved under Professional Standards Legislation

@Copyright 2018 to 2023 Workforce Advisory Pty Ltd