A recent case in the Fair Work Commission found extending a seasonal contract by one day did not mean the employee had been re-employed, and the employer did not dismiss the employee by deciding not to re-employ him.
In a recent case, Bosley v Kosciuszko Thredbo Pty Ltd  FWC 3763, the Fair Work Commission found a major ski resort did not dismiss an employee despite notifying him that he was not going to be re-employed.
Mr Bosley was employed as part of a ski patrol team under a seasonal contract of employment. He had worked in this position for 13 consecutive winters on similar seasonal contracts. His last contract expired on 3 October 2016, however he worked an additional day on 4 October 2016 after requesting to work the extra day. On 5 October 2016, he returned his uniform and keys.
On 21 December 2016, Mr Kuhn, the ski patrol manager, emailed Mr Bosley and informed him that Thredbo would not be re-employing him. The manager referred to a history of Mr Bosley being “discontent” with “company policies, procedures, and management decisions” and harming team dynamics due to his “negativity”.
Mr Bosley claimed he was unfairly dismissed because he worked beyond the expiry of his contract and therefore it could not have said to have lapsed.
Kosciuszko Thredbo argued there was no dismissal but rather a decision not to re-employ. They claimed this was supported by Mr Bosley returning his uniform and keys on 5 October and the process of the company to email employees from the previous winter to advise whether they would be re-employed, and if they would, to request completed documentation. Mr Bosley confirmed this process was followed.
Deputy President Kovacic believed it was obvious to Mr Bosley that his employment would end on 4 October 2016, as evidenced by returning his uniform and keys and not returning to work after this date. The Deputy President noted there was nothing to prevent the contract being extended if agreed to.
He concluded that “the material before the Commission points to Mr Bosley’s seasonal employment being extended by agreement by one day and simply coming to an end on 4 October 2016”.
Consequently, the case was dismissed.
Key issues for employers
This case demonstrates the importance of using clear terms when employees operate under fixed term or seasonal contracts and making sure any extensions are clearly defined.