Aiman Fahda v Allianz Australia Services Pty Limited
[2022] FWC 2720
•25 OCTOBER 2022
| [2022] FWC 2720 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Aiman Fahda
v
Allianz Australia Services Pty Limited
(C2022/5326)
| COMMISSIONER PLATT | ADELAIDE, 25 OCTOBER 2022 |
Application to deal with contraventions involving dismissal – jurisdictional objection – whether the Applicant was dismissed by the Respondent – whether the Applicant was an employee of the Respondent – held Applicant was not an employee of the Respondent – held Applicant was not dismissed by the Respondent – application dismissed.
On 27 July 2022, Mr Aiman Fahda (the Applicant) lodged a general protections application under s.365 of the Fair Work Act 2009 (the Act) alleging that on 7 July 2022, he was dismissed in contravention of the general protections provisions of the Act by Allianz Australia Services Pty Limited (the Respondent).
On 15 August 2022, the Respondent filed a Form F8A Employer Response and raised a jurisdictional objection that Mr Fahda was never an employee of the Respondent, and therefore had not been dismissed by the Respondent. The Respondent agreed to participate in a conciliation conference despite its jurisdictional objection. The matter did not resolve at conciliation on 1 September 2022.
As a result of the decision in Coles Supply Chain Pty Ltd v Milford,[1] I am required to determine the jurisdictional objection before the matter can proceed.
On 8 September 2022, a directions conference was conducted by telephone. A discussion was had with both parties about the Respondent’s jurisdictional objection. The Applicant was invited to consider his position and make an application to amend the name of the Respondent if he wished. Given the Applicant was unrepresented, I adjourned the matter to allow the Applicant to seek legal advice through the Commission’s Workplace Advice Service. By 16 September 2022, the Applicant had not contacted the Workplace Advice Service, and as such, I issued directions for the filing of material in respect of the jurisdictional objection, and a hearing was scheduled for 11 October 2022.
The Applicant failed to file his materials in line with the directions. As such, a non-compliance hearing was listed for 28 September 2022. At the non-compliance hearing, the Applicant was granted an extension to file his materials, and the Respondent was granted an extension to file their materials in reply.
The Applicant filed his materials on 30 September 2022. On receipt of the Applicant’s materials, I determined to make orders of production (the Orders) to both the Respondent and Mayday Recruitment Pty Ltd (Mayday) for all correspondence in relation to the Applicant. These orders were issued on 30 September 2022.
Given the breadth of the materials subject of the Orders, the Respondent requested amendments to the Orders to:
· Restrict the provision of the materials to that considered by the Respondent to be relevant; and
· Redact the material and/or not provide the material to the Applicant as some of the material contained confidential information concerning claims made by the Respondent’s customers.
A procedural hearing as to the form of the discovery was conducted on 4 October 2022. After hearing from the parties, I determined to require the material to be provided to my Chambers only, whereupon it was reviewed. The documents that I considered to be relevant to the jurisdictional issue were provided to the parties (with the names of unrelated persons and the Applicant’s bank account details being redacted) as part of the Digital Court Book, which was distributed on 10 October 2022.
On 3 October 2022, the Applicant sought that I issue orders requiring two persons to attend the Commission to give evidence. These applications were dealt with at the procedural hearing conducted on 4 October 2022. The applications were refused, with reasons provided on transcript.
A hearing was conducted, by videoconference, on 11 October 2022. The Applicant represented himself, whilst the Respondent was represented by Mr Kieran Brown, Manager Employee Relations of the Respondent. Given that both parties were unrepresented, I determined to conduct the hearing by way of determinative conference.
Evidence
A Digital Court Book was compiled from the materials filed by both parties, as well as the relevant documents subject of the Orders, and distributed to the parties prior to the hearing. I received the entirety of the Digital Court Book into evidence, giving appropriate weight to any evidence that was tainted by hearsay, opinion or irrelevance.
The Applicant submitted a number of documents[2] which comprised his evidence and/or submissions. The Applicant also gave oral evidence in support of his position.
The Respondent submitted a statement of Ms Clare Edmonds (Team Manager – Disaster and Recovery)[3] and two statements from Mr Hayden Dahl (Employee Relations Consultant).[4]
The Respondent also sought to submit a statement of Ms Joanna Ward (Director of Mayday). This statement was submitted after the deadline provided for in my directions and contained information that was available at the time the directions were originally issued. No satisfactory reason for the delay was provided. In addition, the documentary information referred to in Ms Ward’s statement was already in evidence. The Applicant objected to my receiving of this statement, and I determined not to receive it.
The relevant facts which go to the jurisdictional question are generally not in dispute, and they are summarised below.
The Respondent operates an insurance business and engages persons to investigate and review insurance claims. Some of those persons are direct employees, other are employed via third party labour providers.
Mayday is a third party which provides labour to the Respondent.
On date prior to 4 April 2022, the Respondent generated a ‘New User Request’ document to onboard the Applicant as an external contract resource, the type of which is recorded as ‘Recruitment Agency Contractor/Temp, for a fixed period between 4 April and 22 September 2022, in the position of Claims Service Consultant in the Catastrophic Claims cost centre.[5]
On Friday 25 March 2022 at 9.16am, an employee at Mayday emailed the Applicant a document which detailed an upcoming role/assignment with Allianz (the Assignment). The document contained the following notice:
“ACTION REQUIRED: please READ and RESPOND to this email to confirm your acceptance of the terms set out in this Confirmation of Assignment. If you begin working in the assignment set out below you will be deemed to have accepted the terms set out in this Confirmation of Assignment.
Hi Aiman,
Huge congratulations on your role with Allianz!
Please read the information below carefully, as it's important to understand the details of your upcoming assignment.
Position: (NSW ) Claims & Customer Service Consultant
Start Date: 4-Apr-2022
End Date: 30-Sep-2022 (Subject to change)
Location: Work From Home (unless otherwise directed - please see below)
Time & Reporting Manager: To be advised by your Consultant
Award: Banking, Insurance & Finance Award
Pay Cycle: Weekly, to be paid the week following hours worked
Pay Rate: 32.83/Hourly + Super (10%)
Pay Rate Breakdown:
Base rate: Plus 25% Loading: Total:
$26.26 $6.57 $32.83
Induction: If this is your first assignment with MAYDAY, you will shortly receive logins to your MAYDAY Portal (Astute) where your induction documents are located. This is where your timesheets, payroll, and induction documents are located.
ACTION REQUIRED: Please attend to your Induction documents at your earliest convenience, as they require your immediate attention.
Work From Home (WFH): Please complete and return the attached WFH document to ensure your safety and suitability for your position, including photo evidence of your workstation.
Your role may require onsite training or working part time between the office and your home; your Consultant will confirm exact working arrangement details with you.
What you need to know:
• If no Award applies: The total hourly rate set out above is inclusive of all monetary amounts that are payable to you (other than super contributions). There is no entitlement to additional payments, such as overtime pay or penalty rates.
• If an Award applies: The total hourly rate set out above is inclusive of, and paid to you in satisfaction of, all monetary amounts you are entitled to under the Award named
above. Please visit the Fair Work website here for a full list of entitlements under your
Award. The total hourly rate set out above includes a casual loading of that is paid to compensate you for not having an entitlement to paid annual leave, paid personal/carer’s leave, paid compassionate leave, payment for absence on a public holiday, payment in lieu of notice of termination or redundancy pay. As a casual employee you will not be entitled to any of these benefits. The casual loading can be used to offset against any subsequent entitlement you may be found to have for any such benefits.
To the extent that the total hourly rate set out above exceeds the minimum hourly rate payable to you under your award in any pay period, MAYDAY may apply the excess to and set it off against any other entitlements that may be payable to you under the award in that pay period.
Casual employment
During this assignment you will be employed by MAYDAY on a casual basis. We have not made and do not make any advance commitment to continuing or indefinite work according to an agreed pattern of work. You accept this assignment on that basis.
Length of engagements
You acknowledge that the length of each engagement is determined by the client and the client may vary the length of an engagement or terminate an engagement at their discretion. Therefore, notwithstanding anything set out above, if a client varies or terminates an engagement, MAYDAY
has an absolute right to vary or terminate your engagement with Allianz in accordance with their requirements, without any requirement to give notice to you.
Timesheets
Attached is a mini guide on how to complete your timesheets through our payroll portal. As well as filling in your bank details, it is important to make sure you tick the Terms of our Privacy Policy and complete the 3 Page Tax Declaration Form.
ACTION REQUIRED: If you haven't sent your ID to us already, please send your Passport (or Australian Birth Certificate + photo ID) to [email protected] - failure to provide ID will impact on you being paid on time.
More Information?
Your Consultant may reach out with further details about your assignment. Time and start date are subject to change, so please keep an eye out for any calls or emails from MAYDAY. Please do not hesitate to contact us on (02) 8377 5600, reply to this email, or your contact your Consultant if you have any queries.
Thank you, and best of luck in your new role!
ACTION REQUIRED: please READ and RESPOND to this email to confirm your acceptance of the terms set out in this Confirmation of Assignment. If you begin working in the assignment set out above you will be deemed to have accepted the terms set out in this Confirmation of Assignment.
Care Team
M: [redacted]
D: [redacted]
A: 8/60 Carrington Street, Sydney, NSW 2000”
(Underline added)
The Applicant replied to this email on Friday, 25 March 2022 at 11.41am. The Applicant’s response reads as follows:
“Thank you for the confirmation of assignment email.
I accept the offer of assignment with Allianz Insurance.
Have a pleasant weekend.
Best regards,
Aiman F”
(Underline added)
Whilst giving evidence, the Applicant conceded that he received the above offer from Mayday and accepted it. The Applicant contended that whilst the written documentation suggested employment by Mayday, in practice he was employed by Allianz, was subject to the direction of Allianz, and was later dismissed by Allainz.
The Applicant was shown copies of the timesheets at page 60 of the Digital Court Book and he accepted that the information on that page was consistent with the 37.5 hours that he worked in the week commencing 4 April 2022. It appears that the hours of work and breaks information was provided by the Applicant and then used to create this timesheet. I accept that the Applicant may not have seen the information in the form presented to the Commission.
The Applicant was shown a copy of an invoice from Mayday to Allianz contained at page 63 of the Digital Court Book. The Applicant accepted that this document referred to the number of hours that he worked in the week of 4 April 2022. Understandably, the Applicant had not seen this document before.
The Applicant was shown the ‘Job Adder records’ contained at pages 89-109 of the Digital Court Book. Whilst initially the Applicant did not recognise this document, upon further questioning s the Applicant accepted that the record of the communication from Ms Chloe Baker, of Mayday, on 5 and 6 April 2022 was correct. I note that the 23 March 2022 record appears to mirror the email sent to the Applicant with the details of the Assignment as extracted in paragraph [19] above. I accept that the ‘Job Adder records’ contain communications made between Mayday and the Applicant.
There was no dispute that the Applicant ceased performing work for Allianz on 7 July 2022. The Applicant contended that he was dismissed by Ms Edmonds, when she removed his access to a Webex chatroom that was used to communicate by the team with which the Applicant worked. A screenshot was provided which indicated that Ms Edmonds removed the Applicant’s Webex access at 10:09am.[6]
The Applicant agreed he had received an email[7] from Ms Sammy Lea, of Mayday, at 11.19am on 7 July 2022 which advised him that his assignment with Allianz had ceased. The Applicant contended that rather than Mayday, it was the Respondent, through Ms Edmonds, that had dismissed him at 10:09am. The Applicant accepted that he had responded Ms Lea’s email and expressed interest in any new roles that might become available.
The Applicant was shown his pay advice contained at pages 327-340 of the Digital Court Book. The Applicant did not dispute receiving those amounts but did not concede that they were paid by Mayday.
The Applicant was shown a contract of employment in his name detailed at page 322 of the Digital Court Book (the Contract of Employment) but disputed receipt or the execution of this document. There was no evidence presented to refute the Applicant’s contention.
The Applicant sought to introduce evidence and/or cross-examine witnesses about his view that he and other persons who worked at Alliance were treated unfairly. This evidence was not taken into account in my determination of this matter, as it is not relevant to the question of whether the Applicant was employed and dismissed by Allianz.
The Applicant also sought to adduce evidence and/or cross-examine witnesses about conduct that occurred post the alleged dismissal. This evidence was also not taken into account as it is not relevant to the question of whether the Applicant was employed and dismissed by Allianz.
Law
Section 365 of the Act provides:
“365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial associated that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”
Section 386 of the Act provides the meaning of dismissed:
“386 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.”
An employment relationship is a necessary component for there to be a dismissal. For the Applicant to be dismissed by the Respondent, therefore satisfying the first limb of s.365 of the Act, it is necessary that the Applicant had previously been an employee of the Respondent.
There are a variety of situations in which a person’s labour may be provided to a business without any employment relationship arising. One example by which this may occur is when an individual’s services are offered to a business by a labour hire agency, with which the individual has an employment relationship.[8]
Recent decisions of the High Court suggest that when the rights and duties of the parties are comprehensively committed to a written agreement which is not a sham and has not been waived or varied, the nature of the relationship between a worker and the entity for which the worker provides labour should be determined solely by reference to the terms of the written agreement.[9]
Consideration
I make the following findings:
· The Applicant was offered an assignment with the Respondent by Mayday. Whilst I accept that the document detailed in paragraph [19] contains a reference to “your role with Allianz”, the remainder is clearly an offer of employment by Mayday (as a casual) to perform an assignment with Allianz.
· The Applicant accepted the assignment by email to Mayday dated 25 March 2022.
· Whilst the terms of the Assignment have been provided, I do not have any evidence as to balance of the Contract of Employment. In my view, it is appropriate to consider material additional to the terms of the written contract and I have done so.
· The Applicant provided information on the hours he worked to Mayday, who in turn invoiced the Respondent.
· Mayday paid the Applicant.
· Mayday had an agreement with the Respondent to supply labour.
· The Applicant’s day-to-day work was directed by the Respondent. This appears to be consistent with nature of the Assignment.
· It appears that the Respondent used a software platform provided by Webex to communicate with the Applicant. The Applicant’s access to this platform was removed at 10.09am on 7 July 2022. I do not accept that the removal of access to the Webex platform in these circumstances amounted to a dismissal by the Respondent.
· Mayday advised the Applicant by email that the Assignment with the Respondent had ceased at 11.07am on 7 July 2022.
· It appears to me that Mayday was the Applicant’s employer during the Assignment with the Respondent.
· I find that the Applicant was not employed by the Respondent. If the Applicant was not employed by the Respondent, then the Respondent (including Ms Edmonds) could not have dismissed him on 7 July 2022.
· It appears that the Applicant remains on Mayday’s books.
As the Applicant was not dismissed by the Respondent, the s.365 application must fail for want of jurisdiction. I dismiss the application. An Order[10] reflecting this decision will be issued concurrently.
COMMISSIONER
Appearances:
A Fahda, the Applicant
K Brown for the Respondent
Hearing details:
2022.
Adelaide (by videoconference):
October 11.
[1] [2020] FCAFC 152.
[2] Exhibit A1 (pp.2-48 of the Digital Court Book)
[3] Exhibit R1 (pp.70-72 of the Digital Court Book)
[4] Exhibit R2 (pp.51-66 of the Digital Court Book and a Supplementary Statement R3 (pages 74-88 of the Digital Court Book)
[5] Digital Court Book pp.54-56
[6] Exhibit A2
[7] Digital Court Book p.113
[8] ACE Insurance Ltd v Trifunovski and Ors [2013] FCAFC 3 at [39].
[9] CFMMEU & Anor v Personnel Contracting Pty Ltd [2022] HCA 1, ZG Operations Australia Pty Ltd & Anor v Martin Jamsek & Ors [2022] HCA 2, Workpac Pty Ltd v Rossato & Ors [2021] HCA 23.
[10] PR747212.
Printed by authority of the Commonwealth Government Printer
<PR746703>
0
3
0