Alexander Warr v Paull & Warner Body Builders

[2025] FWC 248

[2025] FWC 248

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Alexander Warr
v

Paull & Warner Body Builders

(U2024/14950)

DEPUTY PRESIDENT O’KEEFFE PERTH, 28 JANUARY 2025

Applicant not an employee of the Respondent – application has no reasonable prospects of success - application dismissed pursuant to s.587 of the Act.

1. On 9 December 2024 Mr Alexander Warr (the Applicant) applied under s.394 of the Fair Work Act (the Act) for a remedy for alleged unfair dismissal. On 24 December 2024 Paull and Warner Body Builders Pty Ltd (the Respondent) lodged a response to the application, indicating a jurisdictional objection that the Applicant was not an employee. The matter was allocated to my Chambers on 9 January 2025.

2. Having examined the application and the response, it seemed clear to me that in fact the Applicant had been employed by a labour hire firm and that the Respondent was not the employer but rather the host firm.  Given this, on 10 January 2025 I caused my Chambers to write to the Applicant as follows:

   “Dear Mr Warr,

   Your application numbered U2024/14950 has been allocated to Deputy President O'Keeffe. The Deputy President has examined the application and the reply paperwork filed by Warner Body Builders. It appears that you were not an employee of Warner Body Builders but rather employed by a labour hire agency and allocated to work at Warner Body Builders.

   You should be aware that the case law on such labour hire arrangements is settled. In circumstances where an employee is employed (and paid) by a labour hire firm to perform work for a host / client firm no employment relationship is created between the employee and the host / client firm. The employment relationship is instead between the employee and the labour hire firm. For more information, please see the overview provided here: Labour hire workers ' Fair Work Commission

   If it is the case that you were an employee of the labour hire firm, there is a serious jurisdictional issue with your current application in that it is not made against your actual employer. Given this, can you please advise - by 4.00pm (AWST) Tuesday 14th

   January 2025 - as to whether you intend to:

   1. Continue with your current application; or
   2. Make a new application against the labour hire firm; or
   3. Undertake some other course of action.”

3. On 14 January 2025 the Applicant responded as follows:

“Dear Mr Chambers/Ms Kerr

My sincere apologies I did realise this might be the case after submitting the application.

I believe that it is a loophole of sorts where client employers can dictate to the host employer as they see fit, whether unfair or not.

I am unsure if making a new application against the labour hire firm will have any effect whatsoever on the unfair decision made by Paull & Warner Body Builders.”

1. Given the uncertainty created by this response, I caused my Chambers to write to the Applicant on 14 January 2025 as follows:

“Dear Mr Warr,

Deputy President O'Keeffe acknowledges your email dated 14 January 2025. In the first instance, he notes that all correspondence with the Commission must be copied to the other parties in the matter. In this instance we will send your email to them but in future please ensure they are copied into any email that you send.

Secondly, the Deputy President asked that you indicate which of three options you intended to take with respect to your claim. In your response it is unclear as to which option you have chosen. For convenience, the three options were:

1. Continue with your current application; or
2. Make a new application against the labour hire firm; or
3. Undertake some other course of action.

Again, the Deputy President notes that the current application would appear to have serious jurisdictional issues and as such has no reasonable prospects of success. Can you please advise by 12 noon (AWST) Wednesday 15th January as to how you intend to proceed?

1. No response was received from the Applicant.  As such, on 20 January 2025 I caused my Chambers to write to the Applicant as follows:

Dear Mr Warr,

Deputy President O'Keeffe refers you to his previous correspondence dated 14 January 2025 wherein he again asked you to advise, by 15 January 2025, as to how you intend to proceed with your claim numbered U2024/14950. No response has been received.

You are now advised that unless you provide a response by 4.00pm (AWST) Tuesday 21 January 2025, the Deputy President will dismiss your application without any further correspondence being provided to you.

1. As at 11.30am (AWST) 24 January 2025 no response had been received.

2. Previous decisions of the FWC have found that the items in s587(1)(a)-(c) do not limit the powers of the FWC to dismiss applications (Samuel v Collins Transport Group Pty Ltd [2019] FWC 5521. In this instance, the Applicant has failed to respond to correspondence from the FWC which sought to establish his intentions with respect to his application.  In effect, the Applicant has failed to prosecute his claim.  In addition, s.587(1)(c) provides the FWC with the power to dismiss applications that have no reasonable prospects of success.  Given that it is uncontroversial between the parties that the Applicant was employed by a third party and not the Respondent, his application has no reasonable prospects of success.

3. In these circumstances, I am persuaded to exercise my powers under s587 to dismiss the application.  An order to that effect will issue.

DEPUTY PRESIDENT

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