[2020] FWC 66
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Sharon O’Grady
v
WorkPac Pty Ltd
(U2019/10172)

DEPUTY PRESIDENT LAKE

BRISBANE, 6 JANUARY 2020

Application for an unfair dismissal remedy – Jurisdiction – whether termination of employment upon cessation of assignment – Jurisdictional objection – Jurisdictional objection upheld – Application dismissed.

[1] This decision concerns an application for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (the Act) by Ms Sharon O’Grady (the Applicant). WorkPac Pty Ltd (the Respondent) has raised a jurisdictional objection to the Applicant’s application proceeding on the basis that the Applicant has not been dismissed within the meaning of s 386 of the Act.

[2] The jurisdictional objection arises because – it is claimed by the Respondent – that the Applicant has not been dismissed by the Respondent. Following this claim, the Respondent seeks I exercise my discretion under s 587(1)(c) of the Act to dismiss the application, on the basis that there is no reasonable prospect of success.

BACKGROUND

[3] The Applicant was employed on 10 April 2015 as a casual employee. The Applicant was assigned to a client of the Respondent, Anglo Coal (Capcoal Management) Pty Ltd (Anglo) at their Grasstree Mine site and commenced work there on 21 April 2015. The Applicant became unwell on 13 June 2019, provided a medical certificate, and was unfit for work. The Applicant remains unfit for work as at the date of this decision.

[4] On or about 15 August 2019, Anglo informed the Respondent of reduced manning requirements, meaning the role of the Applicant was no longer required. The Respondent attempted to inform the Applicant of this on several occasions on 19 and 20 August 2019. Unable to contact the Applicant by telephone, the Respondent sent correspondence to the Applicant on 20 August 2019 which stated:

“… at such time as you can provide a clearance confirming that you are fit to return to work, WorkPac will work with you to source an alternative assignment.”

JURISDICTIONAL OBJECTION

[5] Section 386 of the Act relevantly provides:

“Meaning of dismissed

(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.”

[6] The Respondent draws a distinction between the termination of assignment to the Anglo site and termination of the Applicant’s employment. It is clear on a reading of s 386 that a mere termination of assignment would not fall within the ambit of s 386.

[7] Given the correspondence of the Respondent on 20 August 2019, it is clear that there is an ongoing relationship between the parties. There was no formal termination and there exists a promise of cooperation to find an alternative assignment, once the Applicant is in a suitable state to return to work. The offer of the Respondent to assist the Applicant in sourcing a new assignment was reaffirmed in correspondence dated 2 September 2019, which stated:

“WorkPac cannot source an alternate assignment for you whilst you are not fit for work. At such time as you are able to provide a clearance to return to fall duties, please don 't hesitate to contact the office for assistance sourcing a new opportunity.”

[8] The Applicant has provided no substantive submissions regarding the jurisdictional objection. Her response totalled 3 paragraphs and stated as follows:

“Dear Associate,

In regards to jurisdictional objection (sic) that the Respondent has noted, I made quite a few enquiries regarding what application/ claim to go forward with. I was unfortunately given the incorrect information/ poor advise.

I do still believe that I have been unfairly dismissed by the host employer and no follow up was conducted regarding my concerns raised with the Respondent prior to me being stood down and ultimately terminated.

On numerous occasions I made contact with my assigned representative (who coincidentally was relieved of her duties and no longer works for WorkPac). I also replied in detail to the allegations made against me with what I was subjected to for months. I confirm that I have followed the correct processes and procedures for both Anglo American and WorkPac and unfortunately no communication was followed through to show duty of care for me the employee/ contactor.”

[9] I accept both the Applicant’s and Respondent’s submissions that they tried to contact each other regarding the Applicant’s employment. In the course of making this application it has become clear that the Respondent is ready willing and able to find alternative employment for the Applicant upon her providing medical advice that she is fit for work.

[10] In Arcadia v Accenture Australia, Watson VP stated: 1

“An employment contract is formed by the offer and acceptance of a contract of service in which all of the essential ingredients of a valid contract are present. The contract must include consideration, the parties must have a continuing and mutual obligation to perform their respective sides of the bargain and there must be intention to create legal relations.

In a typical labour hire situation, a tripartite arrangement is made whereby an agency enters into an agreement with a worker to hire out the services of the worker to a host. In general, the absence of any contract between the worker and the host will lead to a finding that the worker is not an employee of the host. Although the concept of joint employment has some recognition in US Labour Law, it has not been adopted by any Australian Court.”

[references removed; emphasis added]

[11] The above highlights the separation between the agency who employs the worker and the company who utilises the services of the worker. The tripartite arrangement present in this case clarifies that the Applicant was not an employee of Anglo and therefore was not terminated upon cessation of her assignment. The Applicant continues to have an ongoing relationship with the Respondent, highlighted by the offer of support to find new employment, once the Applicant was fit for work.

DISMISSING THE APPLICATION

[12] Section 587 of the Act provides:

“587 Dismissing applications

(1) [When FWC may dismiss application]

Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

[13] Given that the Applicant is still an employee of the Respondent, I find that the application has no reasonable prospect of success.

CONCLUSION

[14] DP Asbury in Ms Kim Star v WorkPac Pty Ltd T/A WorkPac Group [2018] FWC 4991 at [99] stated:

“The contractual relationship between a labour hire company and a host employer cannot be used to defeat the rights of a dismissed employee seeking a remedy for unfair dismissal. Labour hire companies cannot use such contractual relationships to abrogate their responsibilities to treat employees fairly…”

[15] What is before me here is not a labour hire company abrogating their responsibilities. The Respondent has not sought to deny the Applicant employment – on the contrary, they have confirmed there will be future assignments when the Applicant is fit for work. The way forward here is not a claim for unfair dismissal, but rather, the Applicant focussing on improving their health, so that they can work with the Respondent to return to work.

[16] If the Respondent had formally terminated the Applicant’s employment, then there would be scope for the claim to proceed. Currently, however, this is nothing more than a premature application and the claim must be dismissed. The Applicant is still employed by the Respondent, despite her assignment to Anglo being terminated.

[17] In accordance with s 587 of the Act, the application for an unfair dismissal remedy is dismissed. An Order to that effect will be issued with this Decision.

tle: Lake DP - Description: Seal of the Fair Work Commission with member's signature

DEPUTY PRESIDENT

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 1   Arcadia v Accenture Australia [2008] AIRC 108, [6]-[7].