Alexandra Cecily Joan Walsh v PersolKelly Australia Pty Ltd
[2023] FWC 3131
•28 NOVEMBER 2023
| [2023] FWC 3131 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Alexandra Cecily Joan Walsh
v
PersolKelly Australia Pty Ltd
(C2023/4928)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 28 NOVEMBER 2023 |
Application to deal with contraventions involving dismissal – jurisdictional objection – whether there was a “dismissal” within the meaning of s.386 of the Fair Work Act 2009 – no dismissal – no jurisdiction to determine Applicant’s claim – application dismissed
Ms Alexandra Cecily Joan Walsh (Applicant) has filed a general protections involving dismissal application (Application) under s.365 of the Fair Work Act 2009 (Act) with the Fair Work Commission (Commission). The Respondent to the Application is the PersolKelly Australia Pty Ltd (Respondent), the Applicant’s employer.
The Respondent raises a jurisdictional objection to the Application, namely, that the Applicant was not “dismissed” by the Respondent within the meaning of s.386 of the Fair Work Act 2009 (Act). This decision concerns this jurisdictional objection.
At the hearing, the Applicant appeared for herself, and Ms Keira Nguyen, Workplace Relations Manager, assisted by Ms Donna Godman, Workplace Relations Partner, appeared for the Respondent.
Materials relied upon
The Applicant relies upon her Witness Statement dated 5 October 2023.
The Respondent relies upon:
a) it’s written outlines of submission, dated 21 September 2023 and 12 October 2023 (in reply);
b) three supporting documents emailed to Chambers on 21 September 2023; and
c) the Witness Statement of Ms Lucy Wiltshire Principal Recruitment Consultant, PersolKelly Australia Pty Ltd, dated 21 September 2023.
Legislation and case law
Adverse action includes a dismissal under s.342(1) of the Act. The term “dismissed” (or dismissal) is defined under s.12 of the Act as having the meaning set out in s.386 of the Act.
Section 386(1) of the Act reads:
“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.”
The phrase “terminated on the employer’s initiative” under s.386(1)(a) of the Act is treated as a termination in which the action of the employer is the principal contributing factor (directly or consequentially) that leads to (or has the objective probable result of leading to) the termination of the employment relationship. That is, had the employer not taken the action that it did, the employee would have remained employed.[1]
Under s.386(1)(b) of the Act, a forced resignation occurs where an employee has no other choice but to resign. The onus is upon an employee to prove that their resignation was forced by their employer.[2] In other words, an employee must be able to prove on the balance of probabilities that his or her employer took relevant action/s with the intent, or objectively probable result, of bringing the employment relationship to an end.[3] The fact that a resignation may have been foreseeable, or a reasonable response to the actions of an employer, is not the test. Rather, the focus is upon whether the employee’s resignation was the objective probable result of his or her employer’s action/s having regard to, or in light of, other avenues or options equally open or available to the employee.
In normal circumstances, where unequivocal words of resignation are used or conveyed by an employee, an employer is entitled to immediately accept the resignation (without question) and act accordingly.[4] Further, once proffered, a resignation may not be withdrawn unilaterally by an employee; it may only be withdrawn with the mutual consent of the employer. In other words, a resignation cannot be proffered by an employee and then unilaterally withdrawn prior to acceptance by an employer – the employer must always consent to its withdrawal.[5]
Factual findings
On the basis of the evidence before me, I make the factual findings that follow.
The Respondent is a supplier of labour to third parties (i.e. a labour hire provider).
The Respondent has commercial contracts with its clients to supply labour, including staffing solutions and recruitment services. One of those clients is 3M Australia Pty Ltd (3M).
Between October 2012 and July 2018, the Applicant was employed by a labour hire company, who supplied the Applicant (as labour) to 3M.
Between July 2018 and May 2020, the Applicant was employed by Kelly Services Australia Pty Ltd (KSA) (another labour hire company), who supplied the Applicant (as labour) to 3M.
In May 2020, a transfer of business occurred between KSA and the Respondent.
Following this transfer of business, the Applicant was offered a new written contract of employment with the Respondent. Her prior service was recognised by the Respondent as required by the Act.
The Applicant agreed to the terms and conditions set out in the Respondent’s “Casual Employee Contract” (electronically) on 29 April 2020 at 01:45:43PM. Her assignment or placement with 3M continued with the Respondent as her new employer (as it had with the previous labour hire suppliers that formerly employed the Applicant).
In agreeing to the Casual Employee Contract, the Applicant expressly acknowledged (again electronically) that she “has read and underst[oo]d” it.
Relevant terms of the Casual Employee Contract, as agreed to between the Applicant and the Respondent, are as follows:
“Casual Employment
1. You will be recorded as being available to accept offers of casual employment from any entity within the Programmed Group of companies. Being recorded as an available casual employee does not guarantee work, and you acknowledge that:
(a) Any work offered will be in accordance with Programmed’s needs. Programmed may change the quantity and arrangement of any work offered to you as necessary;
(b) There is no obligation on Programmed to offer or on you to accept, any assignment. Each offer and acceptance will constitute a distinct contract of employment, on the terms set out in this agreement, which is separate from any subsequent or prior contract of employment; and
(c) You do not have any entitlement to ongoing employment given the casual nature of your engagement.
Commencement Date
2. Consistent with the nature of your employment, each assignment represents a discrete period of employment on a casual basis. You will be recorded as being available to accept offers of casual employment from the date that you accept the terms of this agreement.
Assignments
(a) Programmed may offer you an assignment, from time to time, by advising you of the expected assignment details, which may include details regarding:
(i) the duration of the assignment;
(ii) the type of work to be performed;
(iii) the entity within the Programmed Group which is employing you for the purposes of the assignment;
(iv) when the work is to be performed;
(v) the location of the work;
(vi) the wage rate;
(vii) the casual loading;
(viii) the work roster; and
(ix) any other requirements applicable to the particular assignment.
(b) Programmed may contact you regarding any current or potential work assignments via telephone, SMS, email or postal mail. In the event that you do not wish to receive further communications, please phone or reply email/SMS your local branch to “unsubscribe”.
(c) You may accept or reject any offer of an assignment. On completion of an assignment, whether satisfactory or otherwise, Programmed is under no obligation to offer you any further assignments.
(d) You acknowledge that an assignment is subject to, and the days of work, hours and length of the assignment are determined by, Programmed’s client requirements from time to time. Therefore, although you may accept an assignment from, and be informed of the expected days of work, hours and length of the assignment by Programmed, these are not guaranteed.
…
11. Termination
(a) You acknowledge that your employment is casual and therefore offered with no expectation of continuity. Programmed will provide you with a minimum of one hour’s notice of any change in your work requirements, suspension of work or the termination of your employment.
…
You will be deemed to agree that the terms and conditions in this contract will apply in relation to each separate assignment that you accept thereafter, by:
• Ticking the ‘I acknowledge I have read and understand Programmed’s Casual Employee Contract, or
• Accepting any offer of work that is made by Programmed.”[6]
On 20 June 2023, 3M advised the Respondent that it no longer required or wished to continue with the Applicant’s placement (assignment), effective 30 July 2023. This information was passed onto the Applicant by the Respondent on 21 June 2023.
The Applicant took a period of paid long service leave (LSL) from 31 July 2023 to 6 September 2023 (noting the Respondent recognised the Applicant’s prior service with her former labour hire employers). This LSL was paid by the Respondent to the Applicant weekly throughout her period of LSL (i.e. the LSL was not paid to the Applicant as a lump sum, as would occur at the end of employment).
Consideration
In limiting my findings in this matter to the evidence and submissions of the parties that are necessarily relevant to the determination of the jurisdictional objection raised by the Respondent (i.e. whether or not the Applicant has been “dismissed”), I have adopted the general proposition or approach of ‘confinement’ stated by Callinan J in the High Court case of Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd[7]:
“But as a general proposition, all civil courts, including intermediate appellate courts, should confine themselves to the issues which are necessary for the disposition of the case.”[8]
A Commission Member is not required in his or her decision and reasons to address every contention advanced. All that is required is to address any submission which relevantly engages with the core issue/s to be resolved. In this case, the core issue is whether or not the Applicant has been “dismissed” by the Respondent.[9] Matters such as the fairness, or the correctness, of a relevant dismissal or non-dismissal, or a relevant outcome, simply do not arise for determination at this (jurisdictional) stage of proceedings.[10]
The Applicant contends that at no time did she agree to the Casual Employment Contract, and that she had no written contract of employment with the Respondent. I find this contention to be contrary to the evidence (see paragraphs [17] to [19] above), and the law.
In the High Court case of Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd[11], Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ, state:
“[43] More recently, in words that are apposite to the present case, in Wilton v Farnworth, Latham CJ said:
"In the absence of fraud or some other of the special circumstances of the character mentioned, a man cannot escape the consequences of signing a document by saying, and proving, that he did not understand it. Unless he was prepared to take the chance of being bound by the terms of the document, whatever they might be, it was for him to protect himself by abstaining from signing the document until he understood it and was satisfied with it. Any weakening of these principles would make chaos of every-day business transactions."
[44] In Oceanic Sun Line Special Shipping Company Inc v Fay, Brennan J said:
"If a passenger signs and thereby binds himself to the terms of a contract of carriage containing a clause exempting the carrier from liability for loss arising out of the carriage, it is immaterial that the passenger did not trouble to discover the contents of the contract."
[45] It should not be overlooked that to sign a document known and intended to affect legal relations is an act which itself ordinarily conveys a representation to a reasonable reader of the document. The representation is that the person who signs either has read and approved the contents of the document or is willing to take the chance of being bound by those contents, as Latham CJ put it, whatever they might be. That representation is even stronger where the signature appears below a perfectly legible written request to read the document before signing it.”
It follows that I find that the Casual Employment Contract was valid and enforceable on its terms, as between the Respondent and the Applicant. Indeed, as the Full Federal Court of Australia states in Murphy v Chapple[12], the “essential point” is that “unless some law provides otherwise, parties are free to contract as they see fit”.[13]
The Applicant’s contentions that she was still seeking to negotiate (or otherwise negotiating) an employment contract with the Respondent, was forced to agree to the Casual Employment Contract to keep her job, or was misled into agreeing to the terms of the Casual Employment Contract (as her acceptance formed part of an induction questionnaire) cannot be substantiated as a matter of evidence or law. To repeat the words of Latham CJ in the High Court case of Wilton v Farnworth[14], “unless [the Applicant] was prepared to take the chance of being bound by the terms of the [Casual Employment Contract], whatever they might be, it was for [her] to protect [herself] by abstaining from signing the document until [she] understood it and was satisfied with it”. Further, “[a person] may not trouble to inform [themselves] of the contents of [a document or contract], but that fact does not deprive the party with whom [they] deal of the rights within [that document or contract].”[15]
The Applicant also contends that she was not a casual employee, but a permanent part-time employee. Again, this contention is contrary to the terms of the Casual Employment Contract, which state that the Applicant was employed by the Respondent on a casual basis. More importantly, whether or not the Applicant was a casual or permanent employee is not relevant to the substance, or resolution, of the jurisdictional (no dismissal) objection before me.
In view of my findings at paragraphs [27] to [28] above, the Applicant’s further assertion that she was engaged under a sham arrangement[16] must be rejected (as a matter of law).
The Applicant further contends that she has not been offered any further work, or work assignments, by the Respondent.
Ms Lucy Wiltshire, Principal Recruitment Consultant, gave the following evidence as to her interactions with the Applicant post 21 June 2023, as follows:
“13. On 14 July 2023, I phoned Alex to check in on her as her assignment was coming to an end at the end of the month. I advised that I would endeavour to look for other work assignments for her. Alex advised she would call me in a week or two.
14. On 18 July 2023, I shared Alex’s profile with the Sydney team to make them aware that her assignment was shortly concluding and to keep her in mind for any roles that might be available in the customer service or administration space.
15. On 21 July 2023, I phoned Alex and advised her of the following:
(a) as she is a casual employee she is not entitled to any redundancy pay;
(b) that she is entitled to take her long service leave; and
(c) I can assist in finding her alternative roles and I asked if she was open to hearing about other opportunities.
16. On the same phone call, Alex told me she did not want to be contacted about any other work opportunities with PersolKelly.
17. On 26 July 2023, Alex emailed me to request to take long service leave from 31 July 2023 until her accrued balance ran out. I approved this request and emailed our Payroll team to arrange for the weekly long service leave payments to be made.
18. By 6 September 2023, Alex had exhausted her accrued long service leave balance and the final payment was made.”
The foregoing evidence of Ms Wiltshire was not seriously challenged during cross-examination by the Applicant. Indeed, under cross-examination, Ms Wiltshire was resolute in her evidence that she spoke to the Applicant about additional options (or job opportunities) other than working at 3M, but was advised by the Applicant that she did not wish to explore any other or additional job options.[17]
Ms Wiltshire also gave the following uncontested evidence:
“With our business how it works with PersolKelly, if your assignment ends you still remain on our books as an active candidate. So you are there for other people to contact you about other work and vacancies. You don't just kind of get put into an archived file. You're still on our systems. So it's not like your assignment finishes and you're completely wiped from the database. You're still there.”[18]
There is nothing extraordinary or exceptional in the foregoing evidence of Ms Wiltshire as it concerns the operation of a labour hire business.
Despite the Applicant’s contention that she has not been offered any further work (or work assignments) by the Respondent post the cessation of her assignment with 3M, under cross-examination by Ms Nguyen, the Applicant conceded that:
a) she had been told by Ms Wiltshire in July 2023 that the Respondent could assist her in obtaining a new work assignment/s;
b) she had advised Ms Wiltshire not to contact her about further work assignments; and
c) she made no attempt to contact the Respondent herself to discuss possible alternative work assignment opportunities.[19]
In closing submissions, Ms Nguyen submitted (in summary) that:
a) the Applicant was engaged by the Respondent on a normal or standard casual labour hire basis;
b) the Applicant agreed to the Casual Employment Contract, including all of the terms set out therein. More specifically, under the Casual Employment Contract (that the Applicant electronically signed and agreed to) there was no guarantee of work, no guarantee of permanent work, no guarantee of work for a particular client (no matter how long she was engaged with a client), and any assignment that the Applicant was allocated to or working on, could be ended (cancelled) at anytime (including by the client). In other words, those are the arrangements that the Applicant agreed to when she agreed to the Casual Employment Contract, and she ought not now be permitted to change or walk-away from those agreed arrangements;
c) it was the Applicant herself that told the Respondent (through Ms Wiltshire) that she did not want any further work assignment post the cessation of her assignment at 3M. In other words, any absence of work from the Respondent to the Applicant post her engagement at 3M was wholly of the Applicant’s own making. It was the Applicant’s decision that she not be offered or accept further work, not the Respondents;
d) the Applicant’s contention that any work assignments that would be offered to her by the Respondent (post 3M) would be limited to blue collar assignments (like forklift driving, or roles involving trade skills, manual labour and/or heavy lifting), are based upon her own lack of knowledge of the assignments that the Respondent is able to make (being white and blue collar roles), and the Applicant’s failure or refusal to make her own inquiries with the Respondent in respect of such roles. Many of the roles that the Respondent can place a candidate in are not advertised or put up on a webpage, meaning the Applicant’s focus upon such roles on the website (as being the only roles available for placement by the Respondent) is wrong, misinformed, and/or misguided; and
e) it is apparent that the Applicant’s case is simply one of grievance. She wrongly considers herself a permanent employee of 3M, with an entitlement to on-going work at 3M, or the payment of a redundancy if no work is available at 3M. The position ignores the factual and legal reality of her engagement with the Respondent, including as set out in the Casual Employment Contract that the Applicant agreed to.[20]
The evidence does not disclose that the Casual Employment Contract, as agreed between the Applicant and the Respondent, has been terminated. Equally, the facts and circumstances of this case (taken as a whole) do not disclose that the employment relationship between the Applicant and the Respondent has come to an end. Rather, the evidence discloses that the Respondent remains open (or ready, willing, and able) to assist the Applicant to be placed in a further work assignment/s via the Respondent on a casual labour hire basis. It follows that, having regard to my findings at paragraphs [12] to [22], and [25] to [36] above, I ultimately find that the Applicant was not terminated (or dismissed) at the Respondent’s initiative (s.386(1)(a)), nor was she forced to resign (s.386(1)(b)).
Conclusion
Given that I have found that the Applicant was not “dismissed” by the Respondent within the meaning of s.386 of the Act, the Commission has no jurisdiction (or power) to proceed any further with the Applicant’s case. I will therefore issue an Order dismissing the Applicant’s Application, which will be published contemporaneously with this decision.
DEPUTY PRESIDENT
Appearances:
The Applicant, Ms Alexandra Cecily Joan Walsh, appeared for herself.
Ms Keira Nguyen, Workplace Relations Manager, assisted by Ms Donna Godman, Workplace Relations Partner, appeared for the Respondent.
[1] Mohazab v Dick Smith Electronics (2005) 62 IR 200, at 205 to 206. See also: O'Meara v Stanley Works Pty Ltd [2006] AIRC 496, at [19] to [23]; Mahony v White [2016] FCAFC 160, at [23]; Khayam v Navitas English Pty Ltd [2017] FWCFB 5162, at [75]; Rheinberger v Huxley Marketing Pty Ltd (1996) 67 IR 154, at 160.
[2] Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941. See also Bruce v Fingal Glen Pty Ltd (in Liq)[2013] FWCFB 5279 and Australian Hearing v Perry (2009) 185 IR 359, at 367-368; [209] AIRCFB 680.
[3] Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941, at [47].
[4] Birrell v Australian National Airlines Commission (1984) 5 FCR 447; [1984] FCA 378. See also Ngo v Link Printing Pty Ltd (1999) 94 IR 375, Print R7005, AIRCFB (McIntrye VP, Marsh SDP and Harrison C), 7 July 1999, and the authorities cited at 377-378, [12]-[16].
[5] Birrell v Australian National Airlines Commission (1984) 5 FCR 447, at 458. See also Saddington v Building Workers Industrial Union of Australia (1993) 49 IR 323, at 336-337; Emery v Commonwealth [1963] VR 586; Australian Wool Selling Brokers Employers’ Federation v Federated Storemen and Packers Union of Australia (1976) 176 CAR 884.
[6] The Respondent is part of the “Programmed Group of companies” and a related body corporate within same ( (2006) 229 CLR 577.
[8] Ibid, at 634, [172].
[9] See, for example, Transcript, PN96-PN97, and PN125.
[10] Ibid.
[11] (2004) 219 CLR 165; [2004] HCA 52.
[12] [2022] FCAFC 165.
[13] Ibid, at [31]. See also at [40].
[14] (1948) 76 CLR 646, at 649.
[15] Ibid.
[16] Transcript, PN196.
[17] Transcript, PN32, PN35, PN43, PN106, PN108.
[18] Ibid, PN103.
[19] Ibid, PN153-PN155.
[20] Ibid, at PN181-PN182, PN187-PN188, and PN190-PN193.
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