Ineffective use of maximum term contracts

Bradley Alan Fisk v State of Victoria (Department of Health) [2022] FWC 911 (31 May 2022) highlights the danger of the ineffective use of maximum term contracts. 

In this case the employee, Mr Fisk, was first engaged as a Public Health Officer by the Victorian Department of Health (“Department”) under a fixed term contract, commencing on 26 August 2020 and ending on 31 December 2020. Following the contract’s expiry date, Mr Fisk continued to perform work, despite there being “no further discussion about the status of his employment.” 

This ambiguous position fundamentally continued into early 2021, as Mr Fisk continued to perform work. In June 2021, the employer sent Mr Fisk a letter terminating his employment. In response Mr Fisk, who at the time was off work on workers compensation, instituted a general protections claim against the Department. The Department objected on jurisdictional grounds to this claim, arguing the employee was not dismissed. In support, the Department claimed the employment was ended by the passing of time when the fixed-term contract expired. 

In judgement, Commissioner McKinnon rejected the Department’s jurisdictional objection, before finding that Mr Fisk was dismissed. Although, Commissioner McKinnon observed, it “may not have been the department’s intention,” once the agreed fixed term passed and Mr Fisk continued to perform work, his contract “became one of ongoing employment.” Commissioner McKinnon rebuked the Department for its “inadequate record keeping” and “poor communication with employees.”

This decision underscores the importance of appropriately appointing an employee and capturing any such arrangement through an effective employment contract that clarifies the terms of engagement. A failure to do so needlessly increases the risk of disputes and claims from the employee.

Disclaimer: This summary is a guide only and is not legal advice. For further information on employment contracts, call ECA Legal on (08) 6241 6129 or email