DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Jared Abbott
v
Acciona Infrastructure Australia Pty Ltd
(U2018/2116)

DEPUTY PRESIDENT ASBURY

BRISBANE, 7 SEPTEMBER 2018

Application for an unfair dismissal remedy – Jurisdictional objection – Whether applicant has met minimum employment period – Whether applicant’s service with former labour hire company and respondent is continuous – Whether a connection between labour hire employer and respondent under s.311(5) of the Fair Work Act 2009 – Whether work of applicant was outsourced and ceased to be outsourced when new employment began – No connection found between labour hire company and respondent – Jurisdictional objection upheld – Application dismissed.

BACKGROUND

[1] Mr Jared Abbott applies under s. 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of the termination of his employment by Acciona Infrastructure Australia Pty Ltd (Acciona). Acciona objects to the application and contends that Mr Abbott was not a person protected from unfair dismissal under s.382 of the Act, as he had not met the minimum employment period defined in s.383 of the Act.

[2] Acciona is part of a joint venture known as Nexus Delivery (Nexus) which is undertaking the construction of the Toowoomba Second Range Crossing Project (the Project). In addition to its own employees, Acciona utilises labour hire companies to provide employees to perform work on the Project. DBS Queensland Pty Ltd (Dowells) is a labour hire company which provides labour for the Project.

[3] Mr Abbott is a carpenter. On 18 April 2017, Mr Abbot was employed by DBS Queensland Pty Ltd (Dowells) to perform work on the Project and Mr Abbot worked for Dowells on the Project until 29 September 2017 when Mr Abbot’s employment with Dowells ended. Mr Abbott commenced employment with Acciona on 3 October 2017 and remained in that employment until 8 February 2018. In order to make an unfair dismissal application Mr Abbott must establish that his service with Dowells and Acciona is continuous so that he has completed a minimum employment period of six months. Other than the issue of whether he has completed the necessary minimum employment period, Mr Abbott is a person protected from unfair dismissal.

[4] A hearing was held on 27 July 2017. Permission was granted for both parties to represented by lawyers pursuant to s. 596 of the Act on the basis that I was satisfied that it would enable the matter to be dealt with more efficiently taking into account its complexity and that no issue of fairness arose. Mr Abbott was represented by Mr L Tiley, Solicitor, Hall Payne Lawyers and Acciona by Mr M Rawlings of Counsel instructed by DWF. Mr Abbott gave made two statements which were tendered into evidence. Mr Abbott was also cross-examined. Acciona tendered a statement made by Mr Steven Ingham, HR Manager for the Nexus on the Project. Mr Ingham was not required for cross-examination.

LEGISLATION

[5] By virtue of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FWC 5609
Decision Date: 7 SEPTEMBER 2018

CaseChat Overview and Summary

Abbott brought an application for an unfair dismissal remedy against Acciona Infrastructure Australia Pty Ltd, asserting that his dismissal was unjust. The matter was before the Federal Circuit and Family Court of Australia, which needed to determine whether it had the jurisdiction to hear the case. The central issue was whether the applicant had satisfied the minimum employment period required under the Fair Work Act 2009 to bring such an application. This hinged on whether the applicant's service with the former labour hire company and the respondent was considered continuous employment. Additionally, the court had to decide if there was a connection between the labour hire employer and the respondent, as per section 311(5) of the Act. This would determine whether the applicant's work was outsourced and if it ceased to be outsourced when his new employment began.

The court examined whether the applicant's employment with the labour hire company and the respondent constituted continuous service, a necessary criterion for the court's jurisdiction. It found that there was no connection between the labour hire company and the respondent, thus the applicant's employment did not constitute continuous service. The court concluded that the work was outsourced and continued to be so until the applicant's employment with the respondent commenced. As a result, the court determined it did not have the jurisdiction to hear the application, and therefore, the jurisdictional objection was upheld and the application was dismissed.

Orders