Mr Francis was a volunteer with the Volunteer Marine Rescue Association Queensland Incorporated (“VMRAQ”).  On 5 January 2021 he commenced employment with VMRAQ as a State Training Officer.

Mr Francis’ initial contract was for 6 months; he was then offered a second contract, this time for 12 months.  Mr Francis continued in his role after the end date of this second contract, ie after 30 June 2022.  On 28 September he was offered a further 12 month contract with the start date backdated to 1 July 2022. He did not formally accept the offer until 5 December but during that time he continued in his role and continued to be paid.

On 25 January 2023 Mr Francis was suspended, on full pay, following a complaint. An investigation was launched. On 14 June 2023 Mr Francis was advised that the inquiry had determined that the allegations were not established.  Two days later he was advised that his contract, due to expire on 30 June 2023 would not be renewed.

Mr Francis sought a remedy for unfair dismissal – Warren George Francis v Volunteer Marine Rescue Assoc Qld Inc [2024] FWC 978 (16 April 2024) (Hunt C).  This case dealt with the question of whether or not he had been dismissed. At [20]:

The Respondent [VMRAQ] contended that Mr Francis’ employment ceased as a result of an effluxion of time. Mr Francis refuted the Respondent’s position, arguing that in reading the correspondence of 14 and 16 June 2023, in the context of the facts, the Respondent dismissed Mr Francis for the purposes of s.386 of the Act.

The respondent argued that all employees were on time limited contracts to link to annual government funding.  It was agreed that when the decision was made not to renew Mr Francis’ contract there was funding for the position and shortly after they did indeed advertise a position that they agreed was Mr Francis’ position (see [34] and [74]).

The Fair Work Commission held that Mr Francis had been dismissed. At [103]-[105], [109] and [112]) the Commission said:

A “termination at the initiative of the employer” is when two criteria are satisfied:

  • the employer’s action “directly and consequentially” results in the termination of employment; and
  • had the employer not taken this action, the employee would have remained employed.

The employment relationship between Mr Francis and the Respondent commenced from 5 January 2021 and was the product of three outer-limit employment contracts.  The first two employment contracts were issued to Mr Francis in advance of the terms commencing.  The last of the three employment contracts was issued to Mr Francis three months after the third term commenced and counter-signed by Mr Francis more than five months after the third term commenced.

Each of the three employment contracts provide the parties with a right to terminate the employment by the provision of notice …  The contracts were therefore not a contract of employment for a specified period…

Having regard to the employment relationship that existed between Mr Francis and the Respondent, I consider that Mr Francis did consider he would continue to be offered, and he would accept employment contract extensions …  I consider that Mr Francis’ expectations were reasonable and also understood by the Respondent…

The reason for not providing a fourth employment contract to cover the period from 1 July 2023 had nothing to do with the Respondent not being confident of funding for the 2023-2024 period; this is clear from the advertisement the Respondent placed on Seek to cover the role Mr Francis had been performing.  The reason was simply that the Respondent did not wish for Mr Francis to continue performing the duties he had been performing for two and half years.

And at [116]:

Having regard to my earlier comments, I am satisfied that the time-limited third contract, offered to Mr Francis nearly three months after its purported commencement date, did not in truth represent an agreement that the employment relationship will end at a particular date.

The Commission was satisfied that Mr Francis employment did not end simply because his contract reached its end date. Rather he was dismissed by the respondent as they brought to an end an ongoing employment relationship that was expected to continue, and which funding was available.

That is not the end of the matter. Having resolved the preliminary question or whether Mr Francis was, or was not dismissed, the unfair dismissal case can proceed, or perhaps settle, in the usual manner. If it does settle, we will hear no more about it. If it proceeds to a hearing, there may be a further judgment.

Discussion

The decision contains a detailed analysis of employment law which I have not tried to summarise here. The relevance for readers of this blog is that I imagine many people are employed with the emergency services (as in other fields) on fixed term contracts.  Such contracts give employers an easy ‘out’ to get rid of staff by letting the contract end rather than having to go through the process of dismissing them.  But as this case shows, it’s not as simple as that. A tribunal, like the Fair Work Commission, can look at the whole relationship and see what is the actual arrangement. In this case Mr Francis and VMRAQ expected his employment was ongoing even if contracts were said to be time-limited to meet funding arrangements.  The fact that he had worked for some months without a contract but on the basis of the ongoing relationship confirmed this. 

Other members of the emergency services – in fact all employees – should remember that there is an independent referee.  An employer’s assertion of ‘the way things are’ does not have to be accepted.  If in doubt, seek legal advice.

The other reason the case is worth reporting is that members of the VRMAQ may read this blog and want to know what happened to Mr Francis.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.