At common law, abandonment of employment by an employee entitles the employer to terminate the employment by reason that the employee has acted in repudiation of the contract of employment. In general terms, abandonment arises in circumstances where the employee is absent from the workplace without authorisation and without communicating with the employer to provide a reasonable excuse for their absence.
To constitute abandonment, the actions of the employee in being absent from the workplace must be such that the employee clearly demonstrates an intention not to be bound by the contract of employment . Factors to be considered will include the length of the absence, the reason for it and whether the employee attempted to contact the employer or the employer to contact the employee.
A university’s enterprise agreement may contain specific provisions that allow the university to terminate employment on the basis of abandonment without needing to apply provisions that might otherwise be applicable to conduct that entitles the university to take disciplinary action in accordance with the agreement.
Under the common law doctrine of frustration of contract, a contract automatically comes to an end if a supervening event outside the control of the parties makes the contract impossible to perform, or means that performance would be a thing radically different from that contemplated by the parties when the contract was entered into. A contract that is frustrated is deemed to have come to an end by operation of law, rather than being brought to an end by the actions of either party to the contract. It is also important to note that if a party treats the employment as still on foot, it will be hard for that party to subsequently argue that the contract has been frustrated 1. Even long-term imprisonment of an employee may not serve to frustrate the contract if the provision of leave entitlements and discretionary leave without pay as ordinarily permitted by the employer could be afforded to keep the employment alive without serious detriment to the employer. As noted by Ryan C in Zeiter v Melway Bin Hire and Demolition Pty Ltd 2: “There does appear to be a well deserved reluctance by courts and tribunals to use the doctrine of frustration of contract when other more obvious options are available to the court or tribunal to decide the matter before them.”
No. All continuous service will count towards the minimum employment period, even where there has been a significant change in duties. This will include casual service if this has been regular and systematic and if the staff member had a reasonable expectation of being offered further employment.
Section 384(1) of the Fair Work Act 2009 precludes an employee from lodging an unfair dismissal claim unless they have served the ‘’minimum employment period’’. For large employers, such as universities, this period is 6 months.
The section defines “employment’’ as “continuous service’’. It then excludes casual employment from the period of continuous service if the casual employment was not regular and systematic and the employee did not have a reasonable expectation of continuing employment. The ‘’reasonable expectation’’ test is to be applied during the period of casual service, not at the point of termination.
The Fair Work Commission has held that the term “employment’’ is clearly referring to the “employment relationship and not the technicalities of the employment contract” 1. This is an important point of distinction between these provisions and those in the previous federal legislation. Under the Workplace Relations Act, a new “qualifying period’’ would operate if the employment contract had fundamentally changed, even thought the employment relationship was continuous.
This means that if, for example, a University employs someone as a member of general/professional staff and they then move into an academic staff position, this will not be considered to be a new employment relationship. Note that this would not preclude the University from applying its academic probationary process to the staff member; the University would need to keep in mind, however, that if the staff member would have access to the unfair dismissal jurisdiction if they were terminated during the probation period, or not confirmed (as long as the total period of service was greater than 6 months). The University would need to ensure that it had a valid reason for termination, based on the staff member’s capacity or conduct, and that the staff member had been given an opportunity to respond to matters of concern.
A job involves “a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employer’s organisation, to a particular employee”. At common law and under the Fair Work Act 2009, if an employee’s job is no longer required to be performed (as opposed to the duties of the job) due to a reorganisation or redistribution of duties, then the job may be redundant 1. The key question is whether the previous job has survived the restructure or downsizing, rather than whether the duties have survived in some form 2.
This is reinforced by the Explanatory Memorandum to the Fair Work Bill 2009 at Item 1548, that cites as an example of a change in the operational requirements of an enterprise the situation where “the employer is restructuring their business to improve efficiency and the tasks done by a particular employee are distributed between several other employees and therefore the person’s job no longer exists”.Q.Is a job redundant if the essential duties remain much the same but the requirements of the job are recast as requiring higher skills/qualifications?
The Fair Work Act 2009 at s.389(1)(a) provides that there is a genuine redundancy if the employer no longer requires an employee’s job be performed by anyone because of changes in their operational requirements.
Although the Act does not define the term ‘operational requirements’, it has been held to be a broad term that permits consideration of many matters including the need for new processes, equipment or skills to be utilised in the business 3.
Where dictated by operational requirements an employer may decide to replace a position held by an employee with a position for which the holding of a higher (eg doctoral or professional) qualification is mandatory. The employee’s position would thus be redundant notwithstanding that some or all of the duties of the redundant position would continue to be performed by other (possibly new) employees 4.Q.Does a university need to establish that there are/were no jobs to which the employee could reasonably be redeployed to if the employee has not pointed to a particular job for this purpose?
The Fair Work Act 2009 at s.389(2) provides that a person’s dismissal is not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within the employer’s enterprise (or an associated entity).
No particular existing position or job needs to be identified for potential redeployment, simply that there was other work available at the time of dismissal which could reasonably have been performed by the dismissed employee. If an employer wishes to rely on the “genuine redundancy” exclusion, the employer would ordinarily be expected to adduce evidence as to why there was no work available or why it would not have been reasonable to redeploy the dismissed employee to perform available work 5.
No. The giving of notice of resignation by an employee is a unilateral right that brings the employment to an end. It does not depend on the acceptance or rejection by the employer in order to be effective. The effect of giving notice of resignation is to end the contract of employment by effluxion of time at the end of the notice period 1.Q.Is an employee able to retract notice of resignation?
In some circumstances. The general rule is that once an employee has given notice of their resignation, they are not able to withdraw it except with the consent of the employer.
An exception to this would occur in circumstances where the employee has clearly given their resignation in the heat of the moment, and in particular where they have swiftly moved to retract the verbal or written resignation.
If the enterprise agreement allows for demotion as a form of disciplinary action, and the University has complied with its obligations under the agreement, then the demotion will not be a “dismissal” and the staff member will not have access to the unfair dismissal jurisdiction of the Fair Work Commission.
At common law, a demotion will often effectively amount to a termination of employment because the employer is unilaterally changing the contract of employment without the employee’s consent. The Fair Work Act 2009 has gone some way to overriding the common law, by providing that a demotion will not equate to a dismissal if:
• the demotion does not involve a significant reduction in the staff member’s remuneration and duties; and
• the staff member remains employed with the employer.
However, even a demotion that amounts to a significant reduction in remuneration and duties will not be a termination if the employee is covered by an industrial instrument that expressly allows for demotion. The great majority of enterprise agreements at universities allow for demotion as a form of disciplinary action that can be taken following a finding of misconduct or poor performance.
In 2014, the Fair Work Commission dismissed an unfair dismissal application by a university employee who had been demoted following the outcome of a Misconduct Investigation Committee 1. In doing, so, the Commission followed Full Bench authority from a case also involving a university, decided under the previous federal legislation 2.
It should also be noted that if the employee is not covered by an enterprise agreement, but their written contract of employment allows for demotion, then demotion will also not amount to termination 3.
No. The fact that a staff member has been wrongly appointed does not of itself change the fixed-term nature of the employment. However, the consequences for the University can be significant.
The staff member, or their union, could bring an action in the Federal Court for breach of the enterprise agreement. This could result in a fine being imposed on the University, but the Court will not rewrite the contract and order that the employment status should be changed from what had been agreed by the parties 1.
Alternatively, the staff member or their union could lodge a dispute in the Fair Work Commission. A Full Bench of FWC has recently held that the Commission does not have jurisdiction to retrospectively alter a fixed-term contract so that it is considered to have been continuing from the outset 2.
However, it is open to FWC to resolve a dispute by requiring the parties to act as if the provisions of the enterprise agreement had been properly applied 3. If there is no constraint in the dispute settling procedure under the enterprise agreement as to the powers that FWC may exercise, this could include ordering the University to re-employ the staff member prospectively on a continuing basis 4.