Andrew Stonebridge v Alstom Transport Australia Pty Limited

[2024] FWC 3149

[2024] FWC 3149

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Andrew Stonebridge
v

Alstom Transport Australia Pty Limited

(U2024/9621)

COMMISSIONER FOX MELBOURNE, 29 NOVEMBER 2024

Application for an unfair dismissal remedy – Jurisdictional objections raised that Applicant neither employed nor dismissed by the Respondent – Jurisdictional objections upheld – Application dismissed.

1. On 19 August 2024, Mr Andrew Stonebridge (the Applicant) filed a remedy for unfair dismissal application under s.394 of the Fair Work Act 2009 (the Act). The Applicant named Alstom Transport Australia Pty Limited (the Respondent) as the Respondent to the application.

1. On 4 September 2024, the Respondent filed a Form F3 in which it raised two jurisdictional objections to the application, that being the Respondent is not the employer of the Applicant, and that it did not dismiss the Applicant. The Respondent submits that the Applicant is employed by Adecco. Adecco has a labour hire arrangement with Alstom Transport.[1]

1. The matter was listed for a staff conciliation on 17 September 2024 which the Applicant did not attend. The matter was referred to me for determination.

1. I issued Directions and conducted a Mention for the matter. The Applicant did not attend despite my Chambers making several attempts to contact him by phone and by email.

1. The Directions required the Applicant to file an outline of submissions, witness statements and other documentary material by 23 October 2024. The Applicant did not file any material in accordance with the Directions and did not request an extension of time. The Respondent filed submissions in accordance with my Directions.

1. A Hearing of the matter was listed for 28 October 2024. The Applicant did not attend the Hearing. My Chambers made several attempts to contact the Applicant by phone and by email to confirm his attendance prior to the Hearing and further advised the Applicant that if he did not attend, the Hearing would proceed in his absence. The Applicant did not respond to any of these communications and did not attend the Hearing. The Hearing proceeded in his absence.[2] At the Hearing, the Respondent sought to rely on its written material filed with the Commission and did not provide any further submissions.

1. It is the Respondent’s submission that the Applicant is an employee of Adecco and not an employee of the Respondent and that Adecco is the preferred labour hire provider to the Respondent.[3]

1. The Respondent seeks to rely on a document titled ‘Candidate Declaration and Consent,’ which was Attachment A of its Outline of Submissions, as evidence of the nature of the employment relationship.  This document is on Adecco letterhead and sets out the terms and conditions of employment for a casual employee with members of the Adecco Group of Companies. This document is dated 7 April 2017 and is unsigned. This document does not establish any evidentiary basis as to the nature of the employment relationship between the Applicant and the Respondent, as it does not identify any parties to the agreement.

1. The Respondent’s submission also refers to Attachment B which is a copy of an email with the subject line ‘Confirmation of Assignment /Conditional Offer’. It is an email from Dee Pathania (of Adecco) to the Applicant sent at 8:02AM on 11 October 2023 (11 October 2023 correspondence). This email is titled ‘Confirmation of the assignment - Alstom Transportation’ and refers to an attachment titled ‘Adecco - Processes and information for Associates’.

1. The body of this email contains the following heading: ‘Conditional offer – Alstom Transportation’. It sets out a range of matters including:

·      Client Assignment details.

·      Important Adecco Contacts.

·      Contact details regarding leave, payroll and rostering.

·      Information on employee assistant and wellbeing programs.

·      Where to report injury/ WHS issues.

·      Employee Confidentiality Policies.

1. Importantly, this email states the following:

   Dear Andrew,

   In accordance with the Candidate Declaration and Consent From. We are pleased to confirm that we have offered, and you have accepted, a client assignment with Altsom Transportation as Material Handler.

   It is important that you understand that in providing the services to Alstom Transportation:

   ·You are engaged as a casual employee by Adecco; and

   ·this Client Assignment forms part of a labour-hire arrangement between Adecco and Alstom Transportation

   ·that the Client Assignment is not an ongoing or permanent role with Alstom Transportation, or Adecco.

   (emphasis in original)

2. On the unchallenged evidence before me, having regard to the submissions of the Respondent and the 11 October 2023 correspondence, I determine that the Applicant is not employed by Alstom Transport Australia Pty Limited. Therefore, the Applicant was neither an employee of, nor dismissed by, the Respondent.

1. The jurisdictional objections are upheld. The application is dismissed. An Order to this effect[4] will be issued with this Decision.

COMMISSIONER

Appearances:

No attendance for the Applicant.
C Hagstrom for the Respondent.

Hearing details:

2024.
Melbourne (Video using Microsoft Teams):
28 October.

[1] Respondent’s Outline of Submissions paragraph 9.

[2] Fair Work Act 2009 (Cth) s.600.

[3] Respondent’s Outline of Submissions paragraph 8-11.

[4] PR781776.

Printed by authority of the Commonwealth Government Printer

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