NRL Referee’s Sidelining Upheld by the Fair Work Commission

The recent Full Bench of the Fair Work Commission (FWC)decision concerning a National Rugby League Referee, Tim Alouani-Roby (the Employee)has clarified the application of maximum term contracts, and whether employees engaged under the same have a right to access the general protections/adverse action jurisdiction of the FWC.

The Full Bench upheld the finding that the Employee could not pursue his dismissal dispute due to his engagement on successive maximum term contracts being expired, rather than his employment being terminated – which is a necessary condition to give rise to jurisdiction to make an adverse action claim against the NRL.

At First Instance

Deputy President Cross determined that the Appellant was engaged under a series of “under a series of maximum term contracts based on its “genuine operational requirements”, and that the contract’s terms reflected the genuine agreement of the parties that the employment relationship would end when it expired.  Accordingly, the Deputy President concluded that the Appellant’s employment ceased through the effluxion of time upon the expiry of the contract, and that he was not dismissed within the meaning of s.386(1)(a) of the Fair Work Act 2009 (FW Act) and dismissed the general protections application.

As such, it was found that the NRL had not initiated the dismissal of the Employee and therefore he could not claim he was dismissed for a reason protected by the adverse action provisions of the FW Act.

The Employee subsequently applied for permission to appeal and appeals from a Decision of Deputy President Cross (the Initial Decision) issued on 12 November 2021. In the Decision, the Deputy President upheld a jurisdictional objection in response to a general protections application involving dismissal, made under s. 365 of the FW Act by the Employee, against the National Rugby League Limited (NRL) and other officers of the NRL.

The Full Bench Decision

The FWC allowed an appeal due to the case raising important questions about the application of s 386 of the Act in the context of maximum term contracts, a highly contentious area of employment law. In its decision, the Full Bench clarified that the legal issue addressed on appeal was whether the Employee was dismissed for the purposes of s 386 of the Act and not whether the NRL had engaged in any conduct that would amount to adverse action. The bench noted that even if they found that adverse action had been taken, they do not have the discretion to “extend remedies for dismissal to persons who have not been dismissed.”

The Full Bench upheld the decision given in the first instance judgement, finding that the NRL did not take any positive steps to terminate the Employee’s employment but rather acted passively and let his contract expire. At the same time, it was held that the Employee “accepted the contract which gave him a further year of employment and was warned that it was unlikely that he would receive another contract past 30 November 2020”.

The decision also accepted that the Deputy President Cross’ earlier decision that use of maximum term contracts were appropriate, and they had a ‘legitimate purpose’ to use maximum term employment contracts.

The Full Bench dismissed the Employee’s appeal.

The Takeaway

This case demonstrates that employers may benefit from implementing maximum term contracts when appropriate in order to avoid claims of unfair dismissal and adverse action. However, we always advise that employers contact us before engaging employees on successive maximum term contracts, as in many instances it is arguable that the employee does have a right to unfair dismissal and/or adverse action on the basis they were dismissed by the employer.

This is a highly contested area of employment law which has been the subject of many legal disputes. If you are an employer who engages maximum term employees and you do not intend on renewing their contract, you will need to ask yourself whether your contracts, engagement and dismissal of employees may be subject to a claim before the FWC.

We recognise that is a particularly difficult area of the law to navigate for our clients, as always, if you have any further questions about maximum term contacts, please do not hesitate to contact Nick Stevens, Peter Hindeleh, Daphne Klianis or Josh Hoggett.

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