The Case

Kosciuszko Thredbo Pty Ltd (Kosciuszko) employed Mr Bosley as a full-time seasonal ski-patrol team employee. Mr Bosley had worked in this capacity for 13 prior ski seasons. His 2016 contract of employment stated his seasonal employment would commence on 11 June 2016 and end on 3 October 2016.

On 3 October 2016, Kosciuszko asked Mr Bosley to work an extra day on 4 October 2016 to help pack up. Mr Bosley agreed. On 5 October 2016, Mr Bosley handed in his uniform and keys.

On 21 December 2016, Kosciuszko advised Mr Bosley that it had made the decision not to re-employ him for future ski seasons. Kosciuszko indicated it was unhappy with Mr Bosley’s behaviour and poor attitude in the workplace.

Mr Bosley commenced unfair dismissal proceedings, claiming:

• Kosciuszko had assured him that he would continue his employment in 2017;
• his seasonal contract had been renewed each year and was regular and systematic;
• he had a reasonable expectation that he would return in the 2017 ski season;
• by working beyond 3 October 2016 (the contract end date) until 4 October 2016, Mr Bosley’s employment contract became ongoing and entitled him to notice of the termination of his employment; and
• his employment ended on 20 December 2016 because Kosciuszko gave notification to him on that date that they had decided not to re-employ him for the 2017 ski season.

Kosciuszko opposed Mr Bosley’s unfair dismissal claim on jurisdictional grounds. Kosciuszko argued that:

• Mr Bosley was a seasonal employee;
• Mr Bosley’s employment ended on the end date stated in the contract;
• Mr Bosley was given notice that the season would end on 3 October 2016, which was consistent with his employment contract;
• Mr Bosley was requested to work an additional day, which he worked by agreement, and he was not offered any further shifts;
• Mr Bosley was familiar with Kosciuszko’s hiring process, which was to contact former employees and advise them whether they would be re-employed or not; and
• Mr Bosley was not dismissed and was not employed by Kosciuszko on 20 December 2016, the alleged dismissal date.

To qualify to bring an unfair dismissal claim, an employee has to have been “dismissed”. Subsection 386(2) of the Fair Work Act 2009 (Cth) provides that an employee is not dismissed if they are employed under a contract for the duration of a specified season and the employment has terminated at the end of the season.

The Verdict

Deputy President Kovacic of the Fair Work Commission (FWC) held that Kosciuszko gave no indication at the end of the 2016 ski season that Mr Bosley would be employed for the next season. The FWC indicated that Mr Bosley had agreed to extend his seasonal employment by 1 day. It was clear that Mr Bosley’s employment ended on 4 October 2017 as he handed back his uniform and keys the next day.

As such, the FWC held that Mr Bosley was not dismissed and hence was not eligible to make the unfair dismissal application.

Lessons for You

It is important you ensure your employment contracts are clearly drafted. If the contract is for a particular duration or task or is seasonal in nature, this should be clearly expressed and appropriate end dates described in the contract. These dates need to be monitored to ensure that contracts for a set duration, task or season do not become continuous or automatically extended.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.