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Ski worker was not dismissed, says Commission

By Jeff Salton on July 31st, 2017

A Fair Work Commissioner has found that a ski patrol worker was not dismissed by his employer Kosciuszko Thredbo Pty Ltd (the Company) and has therefore rejected his unfair dismissal application.

The worker was employed as a full-time seasonal employee under the Alpine Resorts Award 2010 and his employment contract reflected this. He was working as part of the Company’s ski patrol team on a seasonal basis for 13 consecutive winters and prior to that worked for the Company as a volunteer member of the ski patrol team for two seasons.

The worker’s employment contract for the 2016 ski season contained the clause: “You acknowledge that the Company does not warrant or represent that your employment will continue beyond Your Period of Seasonal Employment. However, if, for any reason, your employment does continue after Your Period of Seasonal Employment, then the terms of this letter will continue to apply with the exception of the above paragraph.”

Email to worker

On 21 December 2016, the worker’s employer sent him an email explaining that he wouldn’t be offered a contract for the following ski season, or any further seasons, due to his repeated “discontent with our company policies, procedures, and management decisions including a lot of criticism of new patrollers, your colleagues, and supervisors.”

The email went on to explain that the Company had conducted several meetings with the worker and that at a previous meeting with the general manager he was issued with a final written warning.

“Our team dynamic has been affected from your negativity and we need to project a more positive and united approach to our teams in future seasons, especially to our newer team members, and our guests,” the employer said in the email.

The Company submitted that the worker was employed on a seasonal basis with his contract of employment stipulating an end date of 3 October 2016, even though the worker had been asked, and agreed to work an extra day at the end of the season to help pack up.

The Company told the Commission that there was no decision to terminate the worker’s employment but rather it decided not to re-employ the worker and that as such there was no dismissal at the initiative of the employer. The Company also contended that there was evidence that the worker had been provided notice of termination and no evidence that the worker’s contract of employment had continued beyond 4 October 2016.

No promises

The Company said it made no promises of further work to the employee and that he was very familiar with this hiring process, reiterating that no one was hired on the basis of a verbal agreement or a handshake.

But the worker said that at the end of his 2016 seasonal engagement he was assured that he would have continuing employment in 2017, adding that he was not terminated at the end of his seasonal engagement on 3 October 2016 but after that date by way of email. He also submitted that he worked on 4 October 2016 and that the renewal of his seasonal contract each year was of a regular and systematic nature and that this did not change at the end of the 2016 ski season.

At the Commission hearing, the worker submitted that as he worked beyond 3 October 2016 his seasonal contract had become an ongoing contract on 4 October 2016 and therefore his employment had to be terminated by notice, adding that there was no evidence of such notice having been given to him following the end of the 2016 ski season.

He said that at the conclusion of his 2016 seasonal, his employer had said to him words to the effect “see you next year and we will do this all again”, which he considered to be a new verbal contract for continuing employment. He added that he was “shocked and surprised” to receive the unexpected termination letter.

Deputy President Kovacic said that he accepted that the worker expected to be re-employed for the 2017 ski season, given that he had worked as part of the Company’s ski patrol team for at least 13 consecutive seasons, “the evidence before the Commission indicates that the [Company’s] practice was to email its previous season employees to either advise that they would not be re-engaged or, alternatively, to offer re-employment.”

Commissioner Kovacic also noted that the worker’s seasonal contract of employment could not be extended under the Award, and that there was no clause which explicitly precluded a seasonal contract being extended by agreement.

“For all the above reasons, I find that [the worker] was not dismissed. Accordingly, his application is not competent and must therefore be dismissed,” said Commissioner Kovacic.

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