| [2018] FWC 1530 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy
Mr Constantinos Trakas
v
BPL Adelaide Pty Limited
(U2017/11251)
Mr Constantinos Trakas
v
Ready Workforce (A Division of Chandler MacLeod) Pty Ltd T/A Chandler MacLeod
(U2017/11252)
DEPUTY PRESIDENT ANDERSON |
ADELAIDE, 16 MARCH 2018 |
U2017/11251- Application for an unfair dismissal remedy – matters heard concurrently - jurisdictional issues - whether person employed by host business of labour hire company – indices of contract of employment - whether subsequent offer of employment by host business created employment relationship prior to offer being withdrawn – whether termination at initiative of employer – whether joint employment - whether minimum period of employment served – application dismissed
U2017/11252- Application for an unfair dismissal remedy – matters heard concurrently - jurisdictional issues - whether person employed by labour hire company – contract of employment found – whether dismissed after host business refused employee work assignment under Labour Supply Agreement – employer assignment of alternate work – employee declined further work other than at original assignment –– termination not at initiative of employer – application dismissed
[1] These unfair dismissal matters have a number of unusual features. They concern a worker with allegedly two identities. They concern two alleged employers and a claim of joint employment. They involve multiple jurisdictional issues.
[2] On 22 October 2017 a person under the name of Mr Constantinos Trakas (Mr Trakas or ‘the applicant’) made two applications to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to the one set of circumstances.
[3] He claims in application U2017/11251 that he was unfairly dismissed on 12 October 2017 by Baiada Poultry Australia with his dismissal taking effect on 20 October 2017.
[4] He claims in application U2017/11252 that he was unfairly dismissed on 12 October 2017 by Chandler MacLeod with his dismissal taking effect on 20 October 2017.
[5] The grounds of both applications are similar but not identical.
[6] In respect of both applications he seeks reinstatement.
[7] It was apparent at the hearing of the matters that the respondent party to each application was a trading name but not a legal entity of the alleged employing business. By consent of each respondent, I granted Mr Trakas’ request to amend his application such that the respondent to U2017/11251 became BPL Adelaide Pty Ltd (in lieu of Baiada Poultry Australia) and the respondent to U2017/11252 became Ready Workforce Pty Ltd trading as Chandler MacLeod (in lieu of Chandler MacLeod). 1 For the sake of convenience, in this decision I refer to ‘Baiada’ and ‘Chandler MacLeod’ as the descriptors of the respective respondent parties.
[8] Both Baiada and Chandler MacLeod oppose the applications and each raise jurisdictional issues.
[9] Baiada operates a chicken processing factory at Wingfield in Adelaide’s north-western suburbs. It says that it did not employ Mr Trakas at any relevant time. It says that a person by the name of Anastasios Karrasulous worked at the Baiada factory in Wingfield on placement from a labour hire company Chandler MacLeod. It says that at all relevant times Chandler MacLeod was his employer. In the alternative, it says that whilst it did, some six months later, make an offer of direct employment to Anastasios Karrasulous, it withdrew that offer before Mr Karrasulous accepted it. In the further alternative, it says that if it did employ and dismiss Mr Karrasulous and if that dismissal was a dismissal of the same person as Mr Trakas, then he did not serve the minimum employment period to be eligible to make an unfair dismissal claim. In the further alternative it says that any dismissal was not harsh, unjust or unreasonable, though it made no substantive submissions on that question given its primary position. It opposes any remedy being ordered against it.
[10] Chandler MacLeod operates a labour hire business. It places persons into work with host clients. It says that it employed a person by the name of Constantinos Trakas, who was also known to them as Anastasios Karrasulous, as a casual employee. It says that Mr Trakas was not dismissed but brought his employment to an end of his own motion when he made himself unavailable for further placement after a work reassignment. In the alternative, it says that he was not dismissed as he was a casual employee working specified assignments. In the further alternative, it says that any dismissal was not harsh, unjust or unreasonable. In its written submission on remedy filed in accordance with my pre-hearing directions, Chandler MacLeod agreed that an order for re-instatement was the appropriate remedy, if a remedy was to be ordered. 2 However, in closing submissions at the hearing, Chandler MacLeod amended its position, contending (based on its view of the applicant’s evidence) that it now opposed a re-instatement order and that any compensation order (if made) should be of a limited nature.3
[11] As will be apparent from these reasons for decision, Constantinos Trakas is the same person who had formerly been known as Anastasios Karrasulous. Anastasios Karrasulous is also the same person who had formerly been known as Constantinos Trakas.
[12] Conciliation of both applications was jointly conducted on 13 November 2017 by a Commission-appointed conciliator but was unsuccessful.
[13] I conducted directions hearings of both applications jointly on 23 November 2017 and 9 January 2018. I issued pre-hearing directions on 23 November 2017 requiring written materials and witness statements to be filed prior to hearing. I issued pre-hearing directions on 9 January 2018 concerning the conduct of the hearing.
[14] Two contested matters arose pre-hearing.
[15] At a directions hearing on 23 November 2017 both respondents sought that the applications against them be heard separately. I declined this request. I ordered that the applications be heard and determined not as joint applications but concurrently. I considered that the grounds of each application were sufficiently similar and the jurisdictional issues sufficiently intertwined such that it was in the interests of the efficient conduct of proceedings for a single body of evidence to be provided, and for the three parties to know of and respond to that evidence and the case of the other(s).
[16] At a directions hearing on 9 January 2018 Mr Trakas sought that the proceedings which had been scheduled for 10am on 10 and 11 January 2018 be delayed as he had secured employment making him unable to attend morning hearings. The respondents opposed the request on the ground of unreasonable delay, disruption to interstate witnesses and potential costs of delay. I granted the request and ordered that proceedings on those days commence at 2pm and 1.45pm respectively. I also ordered a schedule for witness evidence that minimised cost and disruption to the respondent witnesses. Subsequent hearing dates also accommodated Mr Trakas’ new employment situation.
[17] I heard all matters (jurisdiction, merit and remedy) on both applications by determinative conference in Adelaide on 10, 11 and 29 January and 1 and 6 February 2018. A decision was reserved.
[18] No contested matters concerning representation arose at the hearing. Permission under section 596 of the FW Act was not required by any party. Mr Trakas was self-represented. Baiada was represented by Mr Stanton and Mr Doyle of the Australian Federation of Employers and Industries, an employer organisation. Chandler MacLeod was represented by Mr Willett, an officer of the company. Being a self-represented applicant in circumstances where each respondent had internal or external representation, in the interest of fairness between the parties and in particular the need for Mr Trakas to present his case and test the case of the respondents, I provided a greater than usual level of explanation and intervention. This included guidance to Mr Trakas about the proceedings and in framing of questions to witnesses, 4 which he found difficult. Mr Trakas cross examined witnesses in the third person.
[19] Mr Trakas’ applications were lodged within the statutorily required 21 days after his (alleged) dismissal took effect.
[20] It was common ground between the parties that a modern award (the Poultry Processing Award 2010) applied to work performed by Mr Trakas at the Baiada factory (section 382(b)(i) of the FW Act) and that he earned less than the high income threshold. It was also common ground that the (alleged) dismissal was not governed by the Small Business Fair Dismissal Code (section 385(c)) nor was the termination a case of genuine redundancy (section 385(d)). On the evidence, I am satisfied this is correct.
[21] The body of evidence on which I determine the jurisdictional matters, merits and remedy in both matters is a combination of oral and documentary evidence. Some is agreed or not contested. However some important differences emerged in oral evidence concerning events and discussions. Issues of credit bear, in part, on my findings of fact. Where there are contested matters I make findings of fact based on the totality of the evidence, including the oral evidence of witnesses and my observations of them when giving evidence.
[22] I heard evidence from four witnesses.
[23] Although clearly anxious, Mr Trakas gave evidence in person for a lengthy period in a polite and considered manner. Cross examination was conducted by video link by interstate representatives. Although wary of questions in cross examination, he conscientiously applied himself to most questions asked. He was sincere and, I am satisfied, an honest witness on the factual narrative. He had a reasonably good recall of events, though some evidence of how he came to initially work at the Baiada factory was inexact due to limits on his recall. However, his evidence also strayed into opinion and advocacy. At times during cross examination he became frustrated and perplexed at what was being put to him. This reflected his strength of feeling about the injustice he believes had been inflicted upon him.
[24] Mr Grant Onley is the Group Human Resources Manager for Baiada, and was called by Baiada. He gave evidence on two occasions (10 January in person and 1 February by video link); the second in consequence of a further witness statement I admitted arising from matters which emerged in his primary evidence and in subsequent proceedings. Mr Onley gave evidence in a calm and ordered manner. He was a reliable witness and actively involved in decisions Baiada made, though he had only limited direct interaction with Mr Trakas.
[25] Two officers of Chandler MacLeod gave evidence, Ms Andrea Genuth the South Australian Branch Manager and Ms Kristy Robinson a Recruitment Consultant. Both had direct involvement with Mr Trakas in the days before he ceased employment. Ms Genuth presented in a clear and credible manner. However, she downplayed the extent to which she did, in fact, disagree with and had contended against the position which had been adopted by Baiada when it decided that Mr Trakas would no longer be accepted for placement at its factory. 5 Ms Robinson was also a reliable witness though she too appeared cautious in making concessions on self-evident factual matters lest it affect Chandler MacLeod’s case. Nonetheless both Chandler MacLeod’s witnesses gave relevant and useful evidence on which I can make findings of fact.
[26] In determining this matter, I am not bound by the rules of evidence but consider them to be a good and useful general guide. I adopt the approach of the Full Bench of this Commission which recently said:
“The Commission is obliged by statute to perform its functions in a manner that is fair and just pursuant to s. 577(a) of the Act. Although it is not bound by the rules of evidence and procedure, the Commission tends to follow the rules of evidence as a general guide to good procedure. However, that which is ultimately required is judicial fairness, and that which is fair in a given situation depends on the circumstances.” 6
[27] As noted, some of the oral evidence and evidence in witness statements tendered strayed into the field of irrelevant considerations, hearsay, opinion and assumption. I place reduced levels of weight on such evidence except where it is corroborated by direct evidence, is uncontested or is inherently believable.
[28] The unfair dismissal provisions of the FW Act concern, and only concern, unfair dismissals of an employee by that person’s employer.
[29] Before I can consider the merits of Mr Trakas’ applications, I need to determine whether he was employed, and if so by whom.
[30] I then need to determine whether he was “dismissed” by his employer(s) within the meaning of the FW Act.
[31] I then need to determine if he had completed the statutory minimum employment period with his employer(s) (of six months continuous service) so as to be a person protected from unfair dismissal. 7
[32] In respect to the application U2017/11251 (Trakas / Baiada), the jurisdictional issues I need to determine are:
● Whether Baiada employed Mr Trakas;
● Whether Baiada employed Mr Karrasulous, who was subsequently known to be the same natural person as Mr Trakas;
● Whether Baiada dismissed either Mr Karrasulous or Mr Trakas; and
● If Baiada employed and then dismissed Mr Karrasulous or Mr Trakas at a relevant time, did he serve the minimum employment period to be a person protected from unfair dismissal.
[33] In respect to the application U2017/11252 (Trakas / Chandler MacLeod), the jurisdictional issues I need to determine are:
● Whether Chandler MacLeod employed Mr Trakas;
● Whether Chandler MacLeod employed Mr Karrasulous, who was known to be the same natural person as Mr Trakas; and
● Whether Chandler MacLeod dismissed either Mr Karrasulous or Mr Trakas.
[34] I made the following findings of fact based on all of the oral and documentary evidence before me. They inform my conclusions on jurisdiction and (where applicable) merit and remedy. Most of these factual findings are uncontested. Where they are contested, I make findings on the balance of probabilities.
Mr Trakas Identity
[35] The applicant in both proceedings is a natural person Constantinos Trakas. He was born under this name in Adelaide on 11 October 1988 of Greek parents. 8
[36] In 2012 Mr Trakas lawfully changed his birth name to Anastasios Karrasulous. This name change was formally recognised by the South Australian authorities. A new birth certificate was issued on 4 April 2012 under the Birth Deaths and Marriages Act 1996 (SA). 9
[37] The reason Mr Trakas changed his name was to assume the name of his father’s adopted family. While his father had been born in Greece as Mr John Trakas, the father was adopted as a child into the Karrasulous family. The Applicant’s evidence was that he changed his name to show respect for his father’s adopted family name: 10
“It was just the pride of having the birth certificate with the name from the roots in Greece and then also my family name, Trakas, was also there, I didn’t want to turn my back on any of them.”
[38] In 2012 he did not just change his surname. He also changed his given name from Constantinos to Anastasios.
[39] Despite the name change, between April 2012 and November 2017 Mr Trakas used, at his discretion and interchangeably, the names Constantinos Trakas and Anastasios Karrasulous to identify himself in both formal and informal settings. For most purposes, including official purposes such as his driver’s licence, his medicare card and his bank accounts, and in many other less formal (social) settings, he continued to use the name Constantinos Trakas, despite this not being his registered name. He used his registered name Anastasios Karrasulous in a more limited way. 11
[40] On 6 September 2017 Mr Trakas (then Karrasulous) decided to change his name back to Constantinos Trakas. He applied to the South Australian Registry of Births, Deaths and Marriages and paid a fee of $231.75 to do so. 12 His reason was largely work-related. He had (at that stage, verbally) been offered (or told that he would be offered) direct employment by Baiada and given that he was known to his work colleagues as ‘Costa’ and preferred that usage in the workplace he wanted to produce to Baiada a new birth certificate under the name Trakas so that he could take up direct employment as Constantinos Trakas.13
[41] On 7 November 2017 a new birth certificate was issued in the name of Constantinos Trakas under the Birth Deaths and Marriages Act 1996 (SA). 14
[42] Mr Trakas took no advice concerning his name changes or the usage of names. 15 Between 2012 and 2017 Mr Trakas was naively unaware of the potential consequences, legal or otherwise, of operating under two names, one of which was no longer his registered name. He adopted the view that as he had changed his name lawfully and could (if asked) explain the reasons for the changes, then he “wasn’t hiding anything from anyone”.16 He considered both names to be accurate and used legitimately because they “were of relevance to me”17 and “form part of my identity”.18
Engagement at the Baiada Factory
[43] Chandler MacLeod conducts a labour hire business through a division operating under the trading name “Ready Workforce”. It places persons in the workplaces of client businesses. One such business was the Baiada chicken processing factory at Wingfield in Adelaide known as Adelaide Poultry. Those placements were made under the terms of a Labour Supply Agreement entered into in 2015 between Chandler MacLeod and Baiada. 19
[44] In March 2017 Mr Trakas was seeking employment. He had registered with a Job Network provider, Work Skill Australia. Work Skill arranged for him to undertake a course at the Port Adelaide TAFE. Whilst at the TAFE, he became aware that work may be available at Adelaide Poultry. 20 To be considered for this work, he was required to complete an employment application with Chandler MacLeod.
[45] On 23 March 2017, whilst holding the registered name Anastasios Karrasulous, Mr Trakas completed a written “Employment Application: Industrial” for “casual employment” with Chandler MacLeod. 21 The application referred to “terms and conditions that would be applicable to your employment with Ready Workforce (a division of Chandler MacLeod Pty Ltd)”.22 Mr Trakas wrote and signed the application as Constantinos Trakas. He provided bank account details in the name of Constantinos Trakas.
[46] Mr Trakas’ application was accepted by Chandler MacLeod. Mr Trakas was told that he would commence work at Baiada’s Wingfield factory (Adelaide Poultry) on 2 April 2017.
[47] Mr Trakas intended to work at Baiada under the name Constantinos Trakas. He intended to prove his identity through his driver’s licence which was in the name of Trakas. 23 However, Baiada required persons working in the factory (whether on-hire or in direct employment) to provide proof of identity through a birth certificate. This was to meet compliance obligations Baiada had agreed in 2015 with the Fair Work Ombudsman following adverse publicity concerning worker identity and working arrangements in some of its factories.24 Mr Trakas provided Baiada his then birth certificate in the name of Karrasulous.25
[48] On 16 March 2017 Mr Trakas produced to Chandler MacLeod his birth certificate of 4 April 2012 in the name of Anastasios Karrasulous. 26 Mr Trakas explained to Chandler MacLeod why he was known to them as Constantinos Trakas but that his birth certificate was in the name of Anastasios Karrasulous. Chandler MacLeod accepted his explanation and was satisfied that the person they were intending to place at Baiada was one and the same.27
[49] Thus, in March 2017 Chandler MacLeod accepted an employment application and employed a person (and agreed to pay wages) under the name of Constantinos Trakas knowing that person to legally be Anastasios Karrasulous. 28 Chandler MacLeod also placed Mr Trakas in Baiada’s Wingfield factory having established those facts to its satisfaction as part of its contractual services to its client, Baiada.29
[50] On 2 April 2017 Mr Trakas presented himself at the Baiada factory and commenced working as Anastasios Karrasulous. 30 As with all employees and on-hire workers at the factory, a photo ID card was prepared by Baiada and worn by Mr Trakas displaying the name “Anastasios (Kosta) Karrasulous” and identifying the worker as being from “Chandler MacLeod”.31 To fellow workers at Baiada, Mr Trakas introduced himself as “Costa” and was known by that name. It was the bracketed name on his ID card. Costa is the shortened version of Constantinos.32
[51] For the next six months, Mr Trakas worked at Baiada under his legal name Anastasios Karrasulous but was known to factory management and fellow workers as Costa. However he was known by Chandler MacLeod by both names and was employed and paid by them as Mr Constantinos Trakas.
[52] Between 2 April and 12 October 2017 Mr Trakas was engaged as a casual chicken process worker at the Baiada factory on placement by Chandler MacLeod. Chandler MacLeod regarded Mr Trakas as their employee. Baiada regarded Mr Karrasulous as an on-hire worker placed with them but employed by Chandler MacLeod.
[53] Although he worked as a casual employee, Mr Trakas worked regularly and systematically. His roster was provided in advance by Baiada. He regularly worked five days a week Monday to Friday, of between seven and eight hours per day, with the occasional Saturday. 33 He was paid by Chandler MacLeod who received details of hours worked from Baiada. Chandler MacLeod applied to Mr Trakas a wage classification under the Poultry Processing Award 2010. He was required to comply with Baiada policies concerning conduct and safety in their factory but was instructed on them by Chandler MacLeod. He took day-to-day operational direction and instruction from Baiada supervisors and managers.34 On a regular basis he was contacted by Chandler MacLeod to advise of logistical matters and to ascertain his satisfaction with work at the factory.35
[54] Between 2 April and 12 October 2017 work at the Baiada factory was Mr Trakas sole placement by Chandler MacLeod.
[55] Mr Trakas enjoyed the work and obtained a high level of satisfaction from it. He was a good, productive and reliable worker, and was complimented on his hard work and attitude. 36
Events of October 2017
[56] Baiada were sufficiently impressed with the worker they knew as Mr Karrasulous that in September and October 2017 the company verbally and then in writing offered him direct employment. On 9 October 2017 Baiada provided Mr Karrasulous a letter of offer together with documents under the heading “Checklist New Baiada Employee Employment Pack” 37. The letter of offer was in the following terms:38
“9 October 2017
Anastasios Karrasulous
(address)
Dear Anastasios
We are pleased to confirm our verbal offer of employment with BPL Adelaide Pty limited as casual Process Employee Level 2, commencing Monday 23rd October 2017, reporting to the relevant Supervisor/Manager.
……….
Dada Hu
General Manager
BPL Adelaide Pty Ltd”
[57] On 9 October 2017, the same day, Mr Karrasulous initialled, signed and dated the letter of offer as follows: 39
“I confirm receipt of this letter, understand and accept its contents
(signed) 9/10/2017
……………………….. ……………………….
Anastasios Karrasulous Date”
[58] On 9 October 2017 Mr Trakas also completed a “Baiada Group New Employee Details Form”. 40 He specified his name as “Anastasios Karrasulous”. On the same form he provided bank details under the name “Constantinos Trakas”. The following day, 10 October 2017, Mr Trakas completed a Tax File Number Declaration required by Baiada.41 He specified his name as “Anastasios Karrasulous”. In answer to the question “if you have changed your name since you last dealt with the ATO, provide your previous family name” he answered “Constantinos Trakas”.
[59] To be employed by Baiada the company required a prospective employee to undergo a pre-employment medical test arranged by a business, Bodycare Workplace Solutions. Based on the verbal offer and in advance of the written offer, Mr Trakas (under the name Karrasulous) completed a Medical Attendee Form provided by Bodycare Workplace Solutions at the Select Health Group on 25 September 2017. 42 To his knowledge, he successfully completed the Pre-employment Physical Assessment.43
[60] Baiada also required prospective employees to provide proof of identity. The requirements were set out in a document provided to Mr Karrasulous titled “Identification required for employment with Baiada” 44 It required presentation of a birth certificate. In Mr Karrasulous circumstances (where both parents were born overseas) he was told by a Baiada officer that he needed to provide a parents passport or citizenship certificate. Around that time Mr Trakas also advised a Production Manager at Baiada, Ms Sinkovich, that he had applied to change his name back to Trakas and would need a new ID card. His evidence, which I accept, was that Ms Sinkovich told him that so long as he supplied the new birth certificate when it arrived and the details verified his current Karassulous name, then “everything should be alright”.45
[61] Whilst attending to these pre-employment matters and in the lead-up to commencing work as a Baiada employee on 23 October, Mr Trakas continued working at the Baiada factory as a labour hire worker placed by Chandler MacLeod. He worked up to and including 12 October.
[62] On 12 October at 11.39am an officer of Baiada sent Mr Onley the following email: 46
Re: Anastasios Karrasulous (Constantinos Trakas)
Hi Grant
A concern has been raised regarding the authenticity and inconsistency of the identification documents the person named above had provided. Please advise what action we should take. The person has been offered direct employment with the Company to commence Monday 23 October 2017. Please find attached relevant documents.
Regards
Sonia Takla
National Industrial Relations Manager”
[63] At 2.31pm on 12 October Mr Onley replied to Ms Takla: 47
“Sonia
I have reviewed the information and have concerns with the integrity of this candidate.
Please advise Chandler MacLeod that the assignment for this worker is to be terminated immediately. Please also send via registered post a letter to Mr Trakas that the offer of employment has been withdrawn.
Grant Onley
Human Resources Manager”
[64] At 4.14pm on 12 October Ms Takla of Baiada sent the following email to Ms Genuth at Chandler MacLeod. 48 This followed a face-to-face discussion49 at the Baiada factory between Ms Genuth and Ms Takla and Mr Onley earlier that day:
“Dear Andrea
Please see email below confirming our conversation today regarding the Company’s instruction to cease this workers assignment effective immediately. Please confirm if the worker has been notified. Thank you.
Sonia Takla
National Industrial Relations Manager”
[65] Ms Genuth contacted Mr Trakas, advised him that he had been ‘stood down’ from the assignment and asked him to attend the Chandler MacLeod office the next day (13 October) with a support person. 50 He brought along his father and his uncle.
[66] Mr Trakas did not again work at the Baiada factory though he was contacted by a supervisor in the early morning of 13 October, apparently unaware of these developments, asking why he was not working his shift. 51
[67] At the 13 October meeting, Ms Genuth told Mr Trakas he had been removed from the factory at Baiada’s direction due to their concerns with his identity. She assured him there was no concern at his performance or capability. She said that if he could not work at the factory then Chandler MacLeod would find him another assignment. Mr Trakas was distressed at the news. He explained that he had changed his name in 2012 for “personal/emotional reasons” 52 and that he was in the process of changing his name back to Trakas. He again provided supporting material (including the Births, Deaths and Marriages Receipt of 6.9.2017).53 A record of discussion was made and signed by both parties.54 That record, and the oral evidence before me55, indicates that Ms Genuth was both understanding of and sympathetic to Mr Trakas position, acknowledged that Chandler MacLeod had been aware of his dual identities from the time he was first recruited in March 2017, and was willing to present to Baiada the documentation Mr Trakas provided with the hope that the decision could be reversed.56 The meeting ended with Mr Trakas “happy with today (sic) discussion and waiting for an outcome in regards to my identity”.57
[68] Ms Genuth spoke to Baiada’s local industrial relations officer (Ms Chalmers) and put the case that Baiada should reconsider its position as it (Chandler MacLeod) had, at all times, been satisfied with his identity and working rights, was satisfied with the explanations for his name change(s), and that it was accepted he was a good employee with no performance issues; in other words, that he had “done no wrong”. 58 In saying this, Ms Genuth was largely repeating what she had told Mr Onley and Ms Takla face to face the previous day.59
[69] On 16 October 2017, by email, Ms Genuth put her position to Baiada in more formal and less assertive terms: 60
“Hi Liz
Please see attached the Record of Discussion from Friday with Costa Trakas, his Father and Uncle as Support Persons. This is relative to the uncertainty surrounding his identity and the integrity of his background. I have supplied the most up to date documents which verify his change of names, the reasoning behind this occurring being personal and pertinent to his Father’s heritage. If there is a chance that his assignment at BPL remaining could be reconsidered that would be great. If the final decision is that the decision is final, we will handle accordingly.
Thank you
Andrea”
[70] Ms Genuth inadvertently attached an incorrect attachment to her email. When alerted to this by Ms Chalmers the following day (17 October at 1.59pm) and asked to re-send, Ms Genuth replied as follows (at 3.15pm): 61
“Apologies Liz – please see attached.
Have had the final word from Grant Ongley (sic) that he can not return so will end his assignment. Can you confirm that his offer of employment has been withdrawn and a letter sent or communicated in another manner.
Thank you”
[71] On 17 October 2017 Mr Trakas received by registered post at his home address a letter from Baiada in the following terms: 62
“16 October 2017
Anastasios Karrasulous (Constantinos Trakas)
(address)
Dear Anastasios (Constantinos)
We refer to our letter of employment dated 09/10/2017 for the position of Process Worker at our Adelaide plant. The purpose of this letter is to inform you that BPL Adelaide Pty Limited has chosen to withdraw their offer of employment.
The Company has made this decision based on serious concerns relating to inconsistencies with the identification documents you provided to the Company.
Yours sincerely
Grant Onley
Group HR Manager”
[72] The purported withdrawal of the offer of direct employment by Baiada on 16 October was made after that offer had been accepted by Mr Trakas on 9 October but before he was due to commence work as its employee on 23 October.
[73] The letter sent by Baiada to Mr Trakas was dated and dispatched on 16 October. It was sent without seeking any explanation from Mr Trakas. 63 Based on the evidence of Ms Genuth, which I accept, Baiada sent this letter before receiving the documentation Ms Genuth re-sent on 17 October. Although unable to recall how she received the “final word” from Mr Onley, Ms Genuth’s documentary and oral evidence was that it occurred before she re-sent the correct attachments.
[74] Mr Trakas was shocked and upset to receive this letter.
[75] Mr Trakas spoke to Ms Genuth and advised that he needed a separation certificate to claim Centrelink benefits. On 20 October he briefly met Ms Genuth and collected a letter as follows: 64
Friday 20th October 2017
To Whom it may concern,
Costa commenced employment with Chandler MacLeod from the 2nd April 2017. Costa’s most recent assignment ended on 20th of October 2017 and remains employed with Chandler MacLeod awaiting his next assignment.
………
Kind regards
Andrea Genuth
Unit Manager – SS SA”
[76] On becoming aware that Mr Trakas was in the building, a recruitment officer of Chandler MacLeod (Ms Robinson) took Mr Trakas aside and offered him an assignment at the Orora packaging factory in Adelaide’s north. She had no concern with Mr Trakas’ identity still satisfying Chandler MacLeod’s requirements. 65 Ms Robinson’s evidence was that Mr Trakas was upset at not being at Baiada and appeared confused about his employment status.66 After considerable reluctance, he agreed to take the assignment.67 He commenced at 2pm that afternoon, 20 October. However, at 4.20pm that afternoon a manager at Orora telephoned Ms Robinson to advise that Mr Trakas had walked off the job two hours into the shift, not to return.
[77] Mr Trakas walked off the assignment at Orora at which he had been placed by Chandler MacLeod. His evidence, which I accept, was that the circumstances of his departure from Baiada and his sense of unfairness were preoccupying his mind. 68
[78] On 22 October, two days later, Mr Trakas lodged his unfair dismissal claims.
[79] During the following week, on either 30 or 31 October (most probably in my view 31 October), Ms Genuth telephoned Mr Trakas. She told him there were other assignments available that he could perform. She remained satisfied as to both his identity and his suitability for work. 69 Mr Trakas advised he wanted to return to Baiada. He was told that he could not. He advised Ms Genuth that he would not accept other work from Chandler MacLeod because he no longer trusted them.70 He said he was pursuing unfair dismissal.71 He and Chandler MacLeod had no further dealings from that date.
Registration of Business
[80] A further matter, relevant at least to Baiada’s case, emerged from the evidence.
[81] On 22 August 2017 Mr Trakas, under the name Anastasios Karrasulous, registered with the Australian Securities and Investments Commission a business name ‘Struggle Chickens’ ABN 22 678 033 207. 72
[82] In deciding to instruct Chandler MacLeod to remove Mr Trakas from its workplace, the evidence of Mr Onley 73 (which I accept) was that this registration came to light when Baiada investigated Mr Karrasulous / Mr Trakas dual identity after the completion of his pre-employment paperwork in October 2017. Baiada was concerned that registration of this name by a person working in its factory could create reputational risk given that one of the established trading names for chickens processed by Baiada was ‘Steggles Chickens’.
[83] Baiada formed this view and it in turn formed part, but I find not a significant part, of the decision it made to withdraw Mr Trakas working rights in their factory. It was this additional information which led Mr Onley to express concern to Chandler MacLeod about Mr Trakas “integrity” 74 as a candidate for direct employment.
[84] However, neither Mr Onley nor any other Baiada officer informed an officer of Chandler MacLeod of this specific development or of its reputational concerns. 75 At all relevant times, Chandler MacLeod was led to believe that Baiada’s concern with Mr Trakas “integrity” related solely to its concern with his identity.76
[85] Further, no officer of Baiada (nor of Chandler MacLeod) presented that information to Mr Trakas to solicit his explanation. 77
[86] Mr Trakas evidence was that he had intended to conduct a weekend business on the Adelaide beachfront selling chicken nuggets under the name ‘Struggles Chickens’ with the by-line ‘we struggle to give you nothing but the best’. 78 He did not view the name as compromising Baiada’s product name ‘Steggles Chickens’ because, he claimed, he would be a retailer whereas Baiada was a wholesaler. He subsequently cancelled the registration and did not proceed with the intended business enterprise.79
Arrangements Between Chandler MacLeod and Baiada
[87] In 2015 Baiada entered into a Labour Supply Agreement with Chandler MacLeod (CMPL). 80 The Agreement operated nationally. It covered Baiada’s operations at the Wingfield factory.
[88] Under the terms of the Agreement, in return for a service fee, Chandler MacLeod contracted to provide Baiada with personnel “as and when requested by Baiada…to perform the tasks in the business at the particular business premises nominated by Baiada.” 81
[89] The Agreement operated until 18 February 2018 with provision for a two year extension.
[90] The Agreement provided that Chandler MacLeod would provide “the instruction and management and control by CMPL of the personnel performing the tasks in the business.” This included the provision of induction by Chandler MacLeod and “the provision of training to CMPL’s employees, working on Baiada sites, in accordance with the material provided by Baiada and Standard Operating Procedures”. 82
[91] The Agreement further provided that Chandler MacLeod warranted “that its employees are legally permitted to work in Australia and that there are no legal or other reasons which would disallow them to work for Baiada”. 83
[92] It provided a right for Baiada to have an employee of Chandler MacLeod removed from its site in the following terms: 84
“If requested by Baiada, CMPL shall promptly remove any personnel from the business premises.”
“CMPL shall promptly replace any personnel removed at the request of Baiada from the Baiada premises with replacement personnel.”
[93] The Agreement also provided for Chandler MacLeod to be responsible for the payment of wages and other industrial entitlements, and to manage any industrial disputes with its employees. 85
Did Baiada employ Mr Trakas or Mr Karrasulous?
[94] Mr Trakas contends that he (under the name Karrasulous) was employed by Baiada at the time he commenced working in the Baiada factory on 2 April 2017. He also contends that, at the same time, he was also employed by Chandler MacLeod.
[95] In the alternative, Mr Trakas contends that he was employed by Baiada when he accepted their offer of employment on 12 October 2017.
[96] Section 386 of the FW Act provides that:
“(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
[97] Neither the provisions of section 386(1)(b) nor (2) and (3) apply in this matter.
[98] The question section 386(1)(a) requires answering is whether the person’s “employment with his or her employer has been terminated on the employer’s initiative”. By virtue of section 380 and sections 13 and 14 of the FW Act a national system employee is an individual who is employed or usually employed by a national system employer. The references to “employment” and “employer” in section 386(1)(a) mean that an employment relationship needs to have existed at the time of dismissal so as to classify the “person” having been in the “employment” of the “employer”.
[99] On the basis of the material before me it is readily established that Baiada is capable of being a national system employer. However, was there an employment relationship between Baiada and a person known as Mr Trakas or Mr Karrasulous?
[100] It is trite to note there are a variety of relationships which result in work being performed in workplaces. Not all are employment relationships. The common law distinction between a contract of service (being an employment relationship) and a contract for services (being a contractor/principal relationship) is but one example. The prevalence of genuine independent contracting as well as labour hire (or on-hire) workers alongside direct employment and contractors are features of the modern economy.
[101] The principles governing an employment relationship are well established. They are drawn from contractual principles, including the existence of offer, acceptance, valuable consideration and intention to create legal relations. 86
[102] What is also well established is the principle that courts will look to the real substance of a relationship to determine if an employment relationship exists. 87 Another expression of this principle has been said by a full bench of this Commission to be “what might be described as the commercial authenticity of those arrangements”.88 Whilst the ‘label’ the parties have expressly given to their relationship is an important consideration, the parties cannot deem the relationship between themselves to be something which, in substance, it is not.89
[103] Based on the facts I have found, Mr Trakas came to be working at the Baiada factory on 2 April 2017 in consequence of a labour hire arrangement between Baiada and Chandler MacLeod. It was a triangular relationship in which Mr Trakas agreed to supply his labour to Chandler MacLeod (under the terms of the ‘Employment Application: Industrial’ between Mr Trakas and Chandler MacLeod) and in turn Chandler MacLeod agreed to place Mr Trakas into work at the Baiada factory and Baiada agreed to that placement (under the terms of the Labour Supply Agreement between Baiada and Chandler MacLeod).
[104] On the face of it, this was a typical labour hire arrangement in which the worker had no contract with the host firm (Baiada) but was an employee of and had a contract of employment with the labour hire firm (Chandler MacLeod).
[105] The ‘label’ or descriptor given by the three parties to the arrangement reflected that position. The ‘Employment Agreement: Industrial’ between Mr Trakas and Chandler MacLeod of 23 March 2017 specifically provided, inter alia, as follows: 90
“Part D: Terms and Conditions of Employment
3.2 You are employed as a casual or “on-hire” employee of the Company. This means that:
(a) you are employed by the Company to perform work for the Company’s clients on assignment;
…..
(f) you are at all times an employee of the Company, and are subject to the Company’s control and direction;
3.3 You acknowledge and understand that:
(a) you are employed by the Company to work for its clients on assignments;
(b) the end of an assignment does not mean that your employment by the Company has been terminated;”
[106] After reading it in reasonable detail, Mr Trakas ticked the box “casual employment” on the ‘Employment Agreement: Industrial’ and signed it (under the Constantinos Trakas name, despite this not being the name on his then current birth certificate). 91 I find that before commencing work at the Baiada factory Mr Trakas was advised that he was Chandler MacLeod’s employee and believed from what he read in the Agreement that this was so.
[107] I further find that there is nothing in the terms of the Labour Supply Agreement between Chandler MacLeod and Baiada which designated an on-hire worker to be other than an employee of Chandler MacLeod. The Agreement expressly refers to persons being “CMPL’s employees”. 92
[108] I find that both Chandler MacLeod and Baiada believed Mr Trakas (or in Baiada’s case, Mr Karrasulous) was an employee of Chandler MacLeod and not an employee of Baiada.
[109] The evidence of Mr Trakas’ belief concerning his relationship with Baiada is more mixed. While I have found Mr Trakas knew clearly that he was Chandler MacLeod’s employee, his evidence was that he also believed he was employed by Baiada. 93 In other words, he contended that he believed he was employed by two employers at the same time, a form of joint employment. Mr Trakas evidence was that he formed this belief because he was working at the Baiada factory. He did not at any stage question Chandler MacLeod or Baiada nor seek clarification as to that belief. His ID card whilst working at Baiada identified him as from “Chandler MacLeod”. His first payslip informed him that he was being paid wages by Chandler MacLeod, not Baiada. I conclude that to the extent Mr Trakas believed that he was also employed by Baiada when he commenced work at the factory that this belief was both incorrect and for which there was no reasonable basis.
[110] Whilst the description given to the relationship and the belief of the parties about the nature of their relationship are relevant, they are not determinative. I turn to consider matters of substance in the way the working relationship operated.
[111] On the basis of the evidence before me, Chandler MacLeod paid Mr Trakas’ wages and industrial entitlements; Chandler MacLeod contacted Mr Trakas on a regular basis during the course of his employment by phone, text or in person on employment matters (Exhibit CM3 evidences 80 general interactions with its employees at Baiada in the six month period); Chandler MacLeod authorised the work assignments and Chandler MacLeod provided training and policy direction (including on Baiada policies). These are all factors that support a conclusion that Mr Trakas was employed by Chandler MacLeod and not Baiada, as provided in the contractual documentation.
[112] The evidence also indicates that Baiada managers provided shift details to Mr Trakas in advance because this proved to be the most practical arrangement between Chandler MacLeod and its employees, and Baiada. 94 Mr Trakas was also given operational direction by Baiada supervisors and was required to comply with Baiada workplace policies. Whilst these factors are characteristics of employment that is not exclusively so. As a full bench of this Commission said in FP Group v Tooheys:95
“In the context of a genuine labour hire arrangement - that is, one involving a labour hire company genuinely in business on its own account - the fact that a worker supplied by the labour hire company works under the direction of the hirer is not necessarily inconsistent with the proposition that the worker’s contract is with the labour hire company and not the hirer.”
[113] Consistent with the conclusion in FP Group v Tooheys, I find that the practical control which Baiada was able to exercise emanated from obligations which Chandler MacLeod assumed under the Labour Supply Agreement in its capacity as employer of Mr Trakas. Those provisions reinforced rather than vitiated Chandler MacLeod’s status as employer of those workers. 96
[114] I am also satisfied that the arrangements between Chandler MacLeod and Baiada were commercially authentic. Each conducted a business on its own, neither were related entities, and the arrangements were commercially practical. 97 Their relationship operated in a manner consistent with the contractual terms between them; as did the relationship between Mr Trakas and Chandler MacLeod.
[115] Mr Trakas referred me to decisions of the Commission in Kumar v Australia Personnel Global Pty Ltd 98 and Vannea v Royal Bay International Pty Ltd99 to support his submission that he was employed by Baiada. In both cases, persons working at the Baiada factory in Wingfield were successful in unfair dismissal proceedings. However, each case turns on its own facts. In Kumar, the Commission found that a labour hire arrangement existed but it did not find that Baiada, as the host business, was the employer. The Commission found that the labour hire business was the employer and made orders against that business on the grounds that there was both a dismissal and an unfair dismissal by that business. No orders were made against Baiada. In Vannea, the Commission found that the worker was not an independent contractor but an employee of the labour hire company that placed the employee to work in the Baiada factory. Once again, the labour hire business was found to be the employer, not Baiada. These cases do not support Mr Trakas’ claim against Baiada.
[116] Mr Trakas also referred me to decisions of the Commission in Kool v Adecco Industrial Pty Ltd 100 and Nguyen v ANT Contract Packers Pty Ltd101. These cases stand for a relevant proposition of law that the substance of relationships rather than the labels attributed need to be examined to determine whether a contract of employment exists. They also indicate that an employer needs to discharge its statutory obligations even when it is a labour hire employer. Each of these matters were also determined on their facts. In Nguyen it was concluded that a host business in a labour hire arrangement was an employer in part because the host business exercised not just control but also took disciplinary action against the worker and had the worker participate in its internal industrial relations structures. In Adecco, the Commission found that the labour hire business was the employer and made orders against that business on the grounds that there was both a dismissal and an unfair dismissal by that business. It made no orders against the host business. Further, in Adecco the contract between the labour hire company and the host business was not before the Commission and the labour hire business formed no independent view on actions taken by the host business.
[117] I accept that the principles set out in paragraphs [48] and [49] of Adecco (which have been followed in Pettifer v MODEC Management Services Pty Ltd 102 and Tasmanian Ports Corporation Pty Ltd v Gee103) would be relevant to a consideration of the merits of Mr Trakas claim against Chandler MacLeod (should I find him to have been employed and dismissed by Chandler MacLeod) but on the question of whether he was employed by Baiada both Adecco and Nguyen are distinguishable and do not lead to the conclusion advanced by Mr Trakas.
[118] To the extent that I understood Mr Trakas to be advancing the proposition, I reject the notion that Mr Trakas was jointly employed by both Baiada and by Chandler MacLeod when he commenced working at the Baiada factory. I do not consider there to be a legal foundation on which a claim of joint employment in respect of the same work can be made or sustained under Australian law. I adopt the observations of Hampton DP in Costello v Allstaff Industrial Personnel (SA) Pty Ltd 104 and the later observations of a full bench of this Commission in FP Group v Tooheys on this point where it was said:105
“the application of a concept of joint employment to labour hire arrangements would involve a very considerable development of the common law…we do not consider that the Commission’s role as a statutory tribunal extends to engagement in the development of the common law. That is a matter for the courts.”
[119] For the reasons stated above I conclude that the relationship between Mr Trakas (known as Karrasulous) with Baiada when he commenced working at the Baiada factory on 2 April 2017 and until 9 October 2017 did not evidence the indices of a contract of employment or indeed a contract of any kind between Mr Trakas and Baiada. Until that date, his contract was with Chandler MacLeod and solely with Chandler MacLeod.
[120] I now turn to consider whether Mr Trakas, still known to Baiada as Karrasulous, was employed by Baiada in consequence of the offer of direct employment made by letter dated 9 October 2017.
[121] I conclude that he was so employed. Based on my findings, an offer of direct employment had been foreshadowed verbally prior to 9 October and was formally made on 9 October. That offer was accepted by Mr Trakas on 9 October. I am satisfied that, at that time, both Baiada and Mr Trakas intended to enter into a contract of employment under which work as a casual employee of Baiada would commence from 23 October. I am satisfied that in return for the verbal offer of employment and then the written offer Mr Trakas promised to take up the employment offered, attended the pre-employment medical assessment and provided pre-employment details requested of him by Baiada. Although Mr Trakas had not commenced work as a direct employee, this conduct constituted valuable consideration. I am satisfied that the requisite elements of a contract were present by close of business 9 October. An enforceable contract of employment in the terms of the 9 October 2017 letter as accepted by Mr Trakas was in existence from that date.
[122] Baiada’s purported withdrawal of its offer of employment by letter dated 16 October was unilateral. It was not agreed by Mr Trakas, neither when he received notice of it on 17 October nor any later date. At the time of the purported withdrawal of the offer, the offer had been accepted and an enforceable contract existed. The offer, having been accepted, could not at law be unilaterally withdrawn without breach. 106
[123] I conclude that Mr Trakas (known as Karrasulous) was employed by Baiada under a contract of employment from 9 October 2017.
[124] Thus, between 9 October and 17 October 2017 Mr Trakas was a party to two separate contracts of employment; one between himself and Chandler MacLeod under which he was assigned to work at the Baiada factory as Chandler MacLeod’s employee (and did so work on 12 October); and two, a contract of employment between himself and Baiada as a casual employee employed directly by Baiada but under which work had not commenced and was not due to commence until 23 October.
[125] This conclusion does not constitute a finding of joint employment. These two contracts existed simultaneously in a temporal sense but not in respect of the same work (that is, the same supply of labour). Work prior to 23 October was labour supplied and assigned by Chandler MacLeod (and only Chandler MacLeod) at Baiada’s request. Had events transpired differently, labour supplied from 23 October onwards would have been supplied directly by Mr Trakas at Baiada’s request.
Did Baiada dismiss either Mr Karrasulous or Mr Trakas?
[126] I have made findings concerning the circumstances giving rise to Mr Trakas not working shifts at the Baiada factory after 12 October.
[127] Mr Trakas had a reasonable expectation that he would be offered casual employment shifts as a direct employee of Baiada’s from 23 October 2017 in accordance with the contract of employment of 9 October.
[128] The decisions made by Mr Onley on 12 October were decisions of Baiada and although they were made simultaneously, they were twofold.
[129] Firstly, Mr Onley’s email to Ms Takla at 2.31pm on that day advised of Baiada’s decision that Baiada would accept no further assignment of Mr Trakas’ labour from Chandler MacLeod. That was not a dismissal of Mr Trakas by Baiada as it was a right exercised under the Labour Supply Agreement between Baiada and Chandler MacLeod.
[130] Secondly, Mr Onley in that same email to Ms Takla also asked Ms Takla to “send via registered post a letter to Mr Trakas that the offer of employment has been withdrawn”. This was communicated by letter dated 16 October and received by Mr Trakas the next day. I have found that this purported unilateral withdrawal of an offer occurred at the time a contract of employment existed between Baiada and Mr Trakas. Based on contractual principles, 107 a unilateral withdrawal of an offer of employment is a termination if made with respect to a contract of employment that was lawfully in existence, even if work had yet to commence under its terms. This was a termination of an employment contract by the employer, in the words of section 386(1)(a) of the FW Act, “on the employer’s initiative”.
[131] I conclude that Mr Trakas was dismissed by Baiada in consequence of a decision made on 12 October 2017, reduced to writing on 16 October and that the dismissal took effect on 17 October when the letter was received by Mr Trakas.
[132] To be clear, this was not a dismissal from work that had been performed between 2 April and 12 October 2017. It was a dismissal from work which was reasonably expected to be offered and performed from 23 October.
[133] For the sake of completeness, I deal with the fact that Mr Trakas, at the time his contract of employment with Baiada was made (9 October) and at the time the decision to dismiss took effect (17 October), was lawfully named Mr Anastasios Karrasulous. I have found that these are one and the same natural person. The contract of employment was entered into with the employee party named as Mr Karrasulous. The letter of 16 October terminating the contract was addressed to “Anastasios Karrasulous (Constantinos Trakas)”. The employee party to the contract was thus identified by his lawful name. There was no illegality (in the form of misrepresentation or otherwise) that impugned the contract. Nor do I find any deception or intent to deceive. I accept and have found that Mr Trakas informed a Baiada Production Manager (Ms Sinkovich) weeks earlier (in September 2017) that he had commenced a process of changing his name back to Trakas. Although Mr Trakas gave evidence 108 that he believed that his application to the registry of births, deaths and marriages on 6 September 2017 (and payment of the fee) meant that he was, from that time, Mr Trakas not Mr Karrasulous, I do not need to determine if legally that was so under South Australian law. Nothing turns on it for present purposes. I simply note that the fresh birth certificate under the name Trakas was dated 7 November 2017.
If Baiada employed and then dismissed Mr Karrasulous or Mr Trakas at a relevant time, did he serve the minimum employment period to be a person protected from unfair dismissal?
[134] Section 382 of the FW Act provides that a person is protected from unfair dismissal if they have completed a period of employment of at least the minimum employment period.
[135] Section 383 of the FW Act sets out the legally required minimum employment period for applications of this type:
“383 Meaning of minimum employment period
The minimum employment period is:
(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:
(i) the time when the person is given notice of the dismissal;
(ii) immediately before the dismissal; or
(b) if the employer is a small business employer—one year ending at that time.”
[136] Unless the minimum employment period has been served, the Commission has no jurisdiction to hear and determine the merits of an application for an unfair dismissal remedy.
[137] In this matter, the minimum employment period applicable to Mr Trakas employment with Baiada was 6 months, the employer not being a small business employer. At the time the dismissal took effect the contract of employment had operated for eight days only (9 to 17 October).
[138] However, Mr Trakas contends that his work at the Baiada factory between 2 April and 12 October should be counted. If it is counted, Mr Trakas would meet the minimum employment period.
[139] Section 384 states:
“384 Period of employment
(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.
(2) However:
(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:
(i) the employment as a casual employee was on a regular and systematic basis; and
(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and
(b) if:
(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and
(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and
(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;
the period of service with the old employer does not count towards the employee’s period of employment with the new employer.”
[140] Mr Trakas was a casual employee (of Chandler MacLeod) during this period. He was, I find, employed on a regular and systematic basis with a reasonable expectation of continuing employment given his roster pattern and the positive view that both Chandler MacLeod and Baiada formed about his work performance.
[141] However, section 384(1) of the FW Act describes “period of employment” for these purposes as “the period of continuous service the employee has completed with the employer at that time as an employee” (my emphasis).
[142] From a statutory construction perspective, the reference to “the employer” in section 386(1)(a) is to be read as a reference to the same entity that is earlier referred to as “an employer”. Thus, the period of service for the purposes of meeting the minimum employment period so as to protect Mr Trakas from unfair dismissal by Baiada must be a period of service whilst he was an employee of Baiada. On the facts before me, Mr Trakas was an employee of Chandler MacLeod and not Baiada during the period 2 April to 9 October. Section 384(1) renders it impermissible to include that six months and one week in the calculation.
[143] Mr Trakas has not met the statutory minimum employment period requirement.
Conclusion in proceedings against Baiada
[144] Mr Trakas was not employed by Baiada between 2 April and 9 October 2017.
[145] Mr Trakas was employed by Baiada between 9 October and 17 October 2017.
[146] Mr Trakas was dismissed by Baiada by decision made on 12 October which took effect on 17 October 2017. He was not dismissed on 20 October, as alleged.
[147] Mr Trakas did not serve the statutorily required minimum employment period with Baiada prior to its dismissal of him taking effect.
[148] Mr Trakas was therefore not a person protected against unfair dismissal by Baiada.
[149] Accordingly, there is no jurisdiction to determine whether the dismissal of Mr Trakas by Baiada was harsh, unjust or unreasonable.
[150] The application against Baiada must be dismissed. An Order giving effect to this decision is made in conjunction with the publication of this decision.
Did Chandler MacLeod employ Mr Trakas or Mr Karrasulous?
[151] On the basis of the material before me it is readily established that Chandler MacLeod is capable of being a national system employer within the meaning of the FW Act.
[152] I have made findings concerning the contract entered into between Mr Trakas and Chandler MacLeod dated 23 March 2017 titled ‘Employment Agreement: Industrial’. I have concluded that this was a contract of employment for work in casual employment as an on-hire employee in which Mr Trakas was employed by Chandler MacLeod as the labour hire company. These were the express terms of that contract.
[153] I have also made findings that this was the belief of Chandler MacLeod and that these facts were known by Mr Trakas. I have made further findings that the conduct of the parties throughout the assignment of Mr Trakas at the Baiada factory was consistent with this belief. Mr Trakas was paid wages by Chandler MacLeod and Chandler MacLeod took an active role in oversight of the assignment and liaison with Mr Trakas on employment matters.
[154] In all the circumstances, I conclude that Mr Trakas was employed by Chandler MacLeod from 23 March 2017 and throughout the period of his assignment at the Baiada factory which concluded on 12 October and for a short period following that assignment until the contract of employment came to an end.
[155] The contract of employment was stated to be with Constantinos Trakas, as this was the name recorded on the Employment Application by Mr Trakas. At the time the contract of employment was made Mr Trakas’ registered name was however Anastasios Karrasulous. I do not consider this to have had the effect of rendering the contract void or voidable on the ground of illegality or misrepresentation. I have found that Mr Trakas disclosed to Chandler MacLeod on 16 March 2017 (prior to the commencement of his employment) that his name was registered as Anastasios Karrasulous but that he preferred to be known and employed as Constantinos Trakas. Chandler MacLeod processed his employment application on that basis. 109
Did Chandler MacLeod dismiss either Mr Karrasulous or Mr Trakas?
[156] Mr Trakas contends that he was dismissed by Chandler MacLeod on 12 October 2017 or shortly thereafter when he was not assigned further work at the Baiada factory.
[157] I have made findings concerning the circumstances giving rise to Mr Trakas not working shifts at the Baiada factory after 12 October. I have also made findings concerning the terms of the contract of employment between Mr Trakas and Chandler MacLeod. The contract of employment expressly provided that an assigned employee, such as Mr Trakas, did not have rights to work at a particular location beyond a particular assignment. It also expressly provided that “the end of an assignment does not mean that your employment by the Company has been terminated.” 110
[158] In circumstances where Baiada exercised its rights under the Labour Supply Agreement between it and the employer to refuse to accept further supply of labour by Mr Trakas at is factory, Chandler MacLeod sought to have Baiada review that decision. Once it was advised that Baiada would not alter its decision, the employer (Chandler MacLeod) assigned Mr Trakas to different casual work at a different host business (Orora). The offer and provision of alternate casual employment by Chandler MacLeod to Mr Trakas on 20 October 2017 was consistent with the terms of his contract of employment with the employer. It evidenced a continuation of that contract, and not its termination. The statement of service of 20 October 2017 provided by Chandler MacLeod to Mr Trakas made it clear that he remained, at that time, a continuing employee. It was not a statement provided for the purposes of advising an employment separation.
[159] I have found that Mr Trakas walked off the shift at Orora at which he had been lawfully assigned by his employer. After having done so, Chandler MacLeod moved to ascertain Mr Trakas’ intention regarding further work. I have found that Mr Trakas advised Chandler MacLeod that unless they (Chandler MacLeod) were able to place him back at the Baiada factory or have Baiada reverse its decision to withdraw its offer of direct employment, that he had lost trust and confidence in Chandler MacLeod such that he believed they were in lock-step with Baiada to deny him what he considered his right to work at the Baiada factory. 111 I have found that Mr Trakas declined to accept further assignments from Chandler MacLeod at that point in time (in his conversation with Ms Genuth on 31 October), advising Chandler MacLeod that he was pursuing a claim of unfair dismissal.112
[160] As mentioned, under the FW Act, a person can only be “unfairly dismissed” if they have been “dismissed” (section 385(a)). Section 386(1) of the FW Act provides that:
“A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
[161] Based on these findings, I conclude that it was Mr Trakas who brought his casual employment to an end by advising his employer, Chandler MacLeod, on 31 October 2017 that he was no longer willing to take work assigned by them. Mr Trakas was not dismissed by Chandler MacLeod within the meaning of section 386(1)(a) of the FW Act as he was not dismissed at the initiative of the employer.
[162] Nor was he forced to resign as a consequence of conduct or a course of conduct by the employer within the meaning of section 386(1)(b). His decision was an expression of his deep disappointment with both Chandler MacLeod and Baiada but it was not forced on him by Chandler MacLeod. He made the decision to refuse further work assignments (and thereby bring his casual employment to an end) because it was the Baiada chicken processing factory, and only the Baiada chicken processing factory, where (at that time) he wanted to work. At 31 October this was his fixation and by then he had resolved to try to secure that outcome by pursuing unfair dismissal actions against both Baiada and Chandler MacLeod. 113 Those proceedings had commenced on 22 October.
[163] Having concluded that Mr Trakas was not dismissed by Chandler MacLeod, I am not required to determine whether, in the circumstances of being ‘on the books’ as a registered casual employee but not having worked on an assignment since 20 October, a continuing contract of employment existed on 31 October such that it was capable of being terminated by the employer. The well-established and orthodox notion of casual employment is employment that is time limited by the hour or day or shift, with no ongoing contract of employment. 114 Whether in this instance that position is displaced by the express terms of the employment agreement (which provided that employment continued beyond an assignment) is an open question that is unnecessary to resolve. I simply note the evidence of Ms Genuth115 that it was the employer’s belief that employment remained ‘live’ in the sense that Mr Trakas was still a registered employee albeit not working shifts or earning wages between 23 and 31 October 2017.
Conclusion in proceedings against Chandler MacLeod
[164] Mr Trakas was employed by Chandler MacLeod between 23 March 2017 and 31 October 2017.
[165] Mr Trakas was not dismissed by Chandler MacLeod on 31 October 2017 or on 20 October 2017 as alleged, or at any time.
[166] Accordingly, there is no jurisdiction to determine whether the dismissal of Mr Trakas by Chandler MacLeod was harsh, unjust or unreasonable.
[167] The application against Chandler MacLeod must be dismissed. An Order giving effect to this decision is made in conjunction with the publication of this decision.
[168] These matters have unusual features and this decision has dealt with legal matters.
[169] However, as with all unfair dismissal claims including ones disposed of on jurisdictional grounds, the matters concern real persons and real businesses. Having conducted proceedings over five days and through a determinative conference process at which I observed the parties at close quarters, I consider it appropriate to make a number of concluding comments.
[170] Firstly, whilst I received evidence on merits and on remedy, I have self-evidently not been in a position, given my jurisdictional findings, to make a decision on matters of fairness. Lest the parties, including Mr Trakas, interpret this decision as a statement about whether relevant conduct was or was not fair, I make it clear that no such conclusion has been made.
[171] Secondly, there are matters which emerged from the evidence which should be a cause for reflection for all three parties, Mr Trakas, Baiada and Chandler MacLeod. It is not the Commission’s role to provide gratuitous advice and I decline to do so.
[172] Thirdly, given the public nature of this decision and its accessibility to a prospective employer I highlight my finding that Mr Trakas, despite the unusual circumstance in which he naively operated under two names, did not set out to deceive or mislead. When he changed his name he lawfully did so. He disclosed that fact to his employer Chandler MacLeod prior to being employed on 23 March 2017. He disclosed that fact to Baiada when offered direct employment in September and October 2017. I also draw attention to my finding that Mr Trakas was a hard-working, reliable and productive process worker evidenced 116 by the fact that he was offered direct employment by the host business after six months of satisfactory service as a labour hire worker. His former employer, Chandler MacLeod, also held that view.
DEPUTY PRESIDENT
Appearances:
C. Trakas, on his own behalf
J. Stanton and T. Doyle for BPL Adelaide Pty Limited
S. Willett, for Ready Workforce (A Division of Chandler MacLeod) Pty Ltd T/A Chandler MacLeod
Hearing details:
2018.
Adelaide; video link to Melbourne and Sydney
10, 11 and 29 January.
1 and 6 February.
Printed by authority of the Commonwealth Government Printer
<PR601171>
1 Transcript 10 January 2018 PN 86 (re Baiada); Transcript 11 January 2018 PN 826 (re Chandler MacLeod)
2 Outline of Submission Merits and Remedy (Chandler MacLeod) paragraphs 54 – 56 (undated, filed 5 January 2018)
3 Chandler MacLeod Closing Submission (Mr Willett) 6 February 2018
4 For example, PN 113, PN 1314, PN 1336, PN 1411, PN 2137
5 Ms Genuth PN 1162 – 1192; PN 1316 - 1323
6 Pearse v Viva Energy Refining Pty Ltd [2017] FWCFB 4701 at [14]. See also section 591 of the FW Act and King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, 17 March 2000) Print S4213 at [61] - [62]; Enterprise Flexibility Agreement Test Case (Print M0464) at page 13; Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 509
7 Section 382(a) FW Act
8 Birth Certificate CM8
9 Birth Certificate CM9 and CM10
10 Mr Trakas PN 2116. See also Mr Trakas PN 2057
11 Mr Trakas PN 2117 - 2129; CM11
12 A5 and CM7
13 Mr Trakas PN 2143 – 2144, PN 2155 - 2161
14 Birth Certificate A7
15 Mr Trakas PN 2795 - 2796
16 Mr Trakas PN 2929
17 Mr Trakas PN 2868
18 Mr Trakas PN 2933
19 Labour Supply Agreement CM4
20 Mr Trakas PN 1900 - 1906
21 ‘Employment Application: Industrial’ CM6
22 Ibid page 1 note (b)(ii)
23 Mr Trakas PN 2118
24 Proactive Compliance Deed 23 October 2015 BPL3 Attachment A. See Also Mr Onley PN 155 - 157
25 Mr Trakas PN 3564 - 3565
26 CM10
27 Ms Genuth PN 960 – 966 “on the onset from Mr Trakas presenting to Chandler MacLeod he satisfied our requirements that he was the individual he was stating”
28 Mr Trakas PN 2045; Ms Genuth PN 1063 – 1067, PN 1154 - 1155
29 Ms Genuth PN 1069 - 1073
30 Mr Trakas PN 2024 - 2025
31 BPL3 Attachment B
32 Mr Trakas PN 2032 – 2035 and PN 2068 - 2070
33 BPL1 Attachment A
34 Ms Genuth PN 1451 - 1467
35 CM3
36 Mr Trakas PN 2152
37 A9
38 BPL1 Attachment B Letter of Offer page 1
39 BPL1 Attachment B Letter of Offer page 3
40 BPL1 Attachment C
41 BPL1 Attachment D
42 A4
43 Mr Trakas PN 1817
44 A10
45 Mr Trakas PN 2138 – 2144, PN 3587; Ms Genuth PN 1208 - 1210
46 Email chain at CM5
47 Ibid
48 Ibid
49 Ms Genuth PN 891, 901
50 Ms Genuth PN 1011
51 Ms Genuth PN 1196 - 1206
52 Record of Discussion A6 page 1
53 A5 and CM7. See also Ms Genuth PN 1043 - 1048
54 A6 and CM12
55 For example, Ms Genuth PN 394, PN 1033 - 1038
56 Ms Genuth PN 1170 – 1173; Mr Onley PN 267
57 A6 and CM12 page 2
58 Ms Genuth PN 1312 - 1323
59 Ms Genuth PN 934
60 CM13
61 Ibid
62 A3
63 Mr Onley PN 163 – 164, PN 181 – 183, PN 195, PN 254 - 255
64 A8
65 Ms Robinson PN 697
66 Ms Robinson PN 375
67 Ms Robinson PN 476; Mr Trakas PN 3404
68 Mr Trakas PN 3417
69 Ms Genuth PN 1468 - 1470
70 Ms Genuth PN 1224, 1240, 1249 - 1250
71 Mr Trakas PN 3431 – 3441, PN 3488
72 BPL2
73 Mr Onley PN 160 – 161, PN 180, PN 246 - 253
74 CM5 Email Mr Onley to Ms Takla on-forwarded to Chandler MacLeod 12 October 2017
75 Ms Genuth PN 1415 - 1416
76 Ms Genuth PN 1382 – 1393, PN 1404 - 1405
77 Mr Onley PN 181 – 183, PN 254 - 255
78 Mr Trakas PN 3164 - 3189
79 Mr Trakas PN 3159 – 3162, 3180 - 3183
80 CM4 (portions redacted)
81 Ibid definition of “services”
82 Ibid definition of “services” (b), (c) and (d)
83 Ibid 3.2
84 Ibid 3.3 and 3.15
85 Ibid 3.12 – 3.14
86 Re Advanced Australian Workplace Solutions Pty Ltd Print S0253 (AIRCFB, 25 October 1999)
87 On call Interpreters and Translators Agency Pty Ltd v Federal Commissioner of Taxation (No 3) (2011) 206 IR 252 at [89]
88 FP Group Pty Ltd v Tooheys [2013] FWCFB 9605 at [22]
89 Stevens v Bodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 37; Abdulla v Viewdaze Pty Ltd t/as Malta Travel (2003) 122 IR 215 at [34]
90 CM6
91 Mr Trakas PN 2384 – 2424, PN 3285 – 3286, PN 3294 – 3298, PN 3517 - 3532
92 For example, Labour Supply Agreement clauses 3.2, 3.6 and 3.7
93 Mr Trakas PN 1926 - 1930
94 Ms Genuth PN 1451 - 1460
95 FP Group Pty Ltd v Tooheys [2013] FWCFB 9605 at [25]
96 Ibid at [30]
97 Mr Onley PN 234, PN 237
98 [2017] FWC 5661 (Platt C, 3 November 2017)
99 [2014] FWC 6416 (O’Callaghan SDP, 18 September 2014)
100 [2016] FWC 925 (DP Asbury, 17 February 2016)
101 128 IR 241 (IRC of NSW, McKenna C, 3 March 2003)
104 [2004] SAIRC 13
105 FP Group Pty Ltd v Tooheys [2013] FWCFB 9605 at [41] and [44]
106 Advertiser Newspapers Pty Ltd v Industrial Relations Commission of South Australia (1999) 90 IR 211 at [32] per Bleby J “It is now well accepted that contracts of employment subject to that type of repudiation are in no different position from any other contract. The repudiation does not, in itself, automatically terminate the contract. The contract continues on unless and until the employee accepts the repudiation.”
107 For example, Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110 per McHugh JA at 11,117: “In classical theory, the typical contract is a bilateral one and consists of an exchange of promises by means of an offer and its acceptance together with an intention to create a binding legal relationship … A bilateral contract of this type exists independently of and indeed precedes what the parties do.”
108 Mr Trakas PN 3021, PN 3033
109 Ms Genuth PN 966
110 CM6 Part D Clause 3.3(b)
111 Mr Trakas PN 3475 - 3488
112 Ms Genuth PN 1230, PN 1240, PN 1249-1250; Mr Trakas PN 3431 - 3441
113 Mr Trakas PN 3417 - 3423
114 City of Sydney RSL & Community Club Limited v Roxana Balgowan [2018] FWCFB 5, 16 January 2018 at [23] – [24]: “The general contractual characteristics of casual employment is that a person who works over an extended period of time as a casual employee will be engaged under a series of separate contracts of employment on each occasion a person undertakes work, however they will not be engaged under a single continuous contract of employment.”
115 Ms Genuth PN 1093, PN 1253 – 1256, PN 1325 - 1330
116 Mr Onley PN 189 - 190