TERMINATION OF EMPLOYMENT – contract for specified term – ss.386, 394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant engaged as a teacher on a casual basis from 2005 to 2012 and then on a number of maximum-term contracts from 2012 to when his employment ended on 30 June 2016 – covered by The Navitas English Enterprise Agreement 2010-2012 (2010 Agreement) and The Navitas English Enterprise Agreement 2013-2015 (2013 Agreement) – contracts of employment clause changed between the 2010 Agreement and 2013 Agreements – applicant claimed there was a continuous employment relationship – submitted none of the contracts he entered into with respondent had been for a specified time because each one contained a clause for either party to terminate by giving notice – claimed 2013 Agreement required respondent to conduct an assessment using clause 11 of the 2013 Agreement to determine if a maximum-term employee would have their contract renewed – claimed respondent should have taken an active step to consider eligibility of applicant and give notice to applicant if contract would not be renewed [Mohazab] – claimed this and obligations of clause 11 of 2013 Agreement imposed a positive act on employer to end employment and therefore termination was at respondent’s initiative – respondent raised jurisdictional objection – claimed no dismissal because applicant was employed on a series of maximum term contracts and his employment ended on the latest contract expiration – submitted applicant’s employment was predominantly linked to government funding expiring on 30 June 2016 – respondent denied it informed applicant his employment was being terminated – respondent’s Area Manager gave evidence that due to fluctuating student numbers it needed to maintain a balance between permanent, maximum-term and casual employees – to achieve this, respondent used a set of criteria from which it was determined which employees would be offered a new maximum-term contract – gave evidence that applicant scored lowest and was informed on 31 May he would not be offered a new contract – submitted applicant’s employment ended by the effluxion of time [Lunn] and no terms in 2013 Agreement affected applicant’s employment ending for that reason – claimed applicant entered into final contract freely with an intention that it had a finite period – Commission satisfied terms of employment contract were clear and unambiguous – found applicant was aware his employment could end by a maximum-term contract reaching its end date – found 2013 Agreement allowed respondent ‘in its absolute discretion’ to determine if applicant was to be offered a new contract – Commission bound by Lunn – no dismissal at initiative of respondent – relevant to s.386(2)(a) FW Act, employment ended due to the effluxion of time – considering s.386(3) FW Act, respondent did not enter into the maximum-term contract for the substantial purpose of avoiding unfair dismissal obligations – government contracts fundamentally linked to its operations – application dismissed. Khayam v Navitas English P/L t/a Navitas English
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