Brayden John Bristow v HVA Technical Services Pty Limited - [2023] FWC 2036

[2023] FWC 2036

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Brayden John Bristow
v

HVA Technical Services Pty Limited

(C2023/3298)

COMMISSIONER LIM

PERTH, 22 SEPTEMBER 2023

Application to deal with contraventions involving dismissal – jurisdictional objection – not dismissed.

Introduction

Mr Brayden John Bristow (the Applicant or Mr Bristow) has applied pursuant to s 365 of the Fair Work Act 2009 (Cth) (Act), alleging that HVA Technical Services Pty Limited (the Respondent) contravened Part 3-1 of the Act by dismissing him from his employment.

The Respondent is a related entity of Programmed Skilled Workforce Limited (Programmed). Programmed is a large national labour hire company that supplies labour hire across a variety of clients. For clients in the open-cut mining industry in Western Australia, Programmed generally engages and supplies labour through the Respondent.[1] The operation of the Respondent is generally undertaken by Programmed staff and processes.

Among other clients, Programmed is contracted to supply labour to BHP projects in Western Australia. In the circumstances that led to this matter, Mr Bristow was on an assignment to perform work at BHP’s Jimblebar Mine in Western Australia (Jimblebar).

In May 2023, Mr Bristow’s assignment at Jimblebar was concluded. Mr Bristow reached the view that his assignment had concluded because he had taken compassionate leave. The parties engaged in discussions to ascertain what had led to Mr Bristow’s assignment concluding. After those discussions, Mr Bristow filed the application in this matter.

The Respondent has raised a jurisdictional objection alleging that Mr Bristow was not dismissed, and that the employment relationship remains on foot.

It is uncontroversial that for the matter to proceed, Mr Bristow needs to have been dismissed. In Coles Supply Chain Pty Ltd v Milford[2] (Coles v Milford) the Full Court of the Federal Court held that where a respondent submits that the applicant to a section 365 application was not dismissed, as is the case here, the FWC must determine that issue before exercising its powers under s 368 of the Act.[3]

Accordingly, the matter was allocated to my Chambers and a mention was held on 18 July 2023. Directions were issued to the parties for the filing of material in relation to the jurisdictional objection.

The hearing was conducted in person in Perth on 30 August and 31 August 2023. At the hearing, the Mr Bristow was represented by his mother, Ms Kerryn Narkle. The Respondent was granted permission to be represented by Mr Sam Pack of counsel.

Having considered the evidence and submissions of the parties, I am not satisfied that Mr Bristow was dismissed within the meaning of s 368(1) of the Act. The application must accordingly be dismissed.

My detailed reasons for my decision follow.

Background

The following background facts are not contested between the parties.

The Respondent’s operations model

The Respondent’s prospective employees must register with Programmed, where they complete online registration and induction modules. This process requires the prospective employees to agree to a casual employee contract (Programmed Casual Contract). After this process, the employee is then recorded in the Respondent’s candidate pool and may be offered matching work assignments. If an employee of the Respondent is offered an assignment, they receive further information about the assignment such as rates of pay and site-specific information.[4]

The Applicant’s employment with HVA

It is uncontroversial that Mr Bristow was employed by the Respondent on a casual basis, where the Respondent would offer him assignments based on their clients’ labour requirements and Mr Bristow could accept or reject the assignments.

Mr Bristow completed an online registration and induction with Programmed on 19 January 2021. Mr Bristow did this as he sought to apply for a fly-in fly-out (FIFO) warehouse role.[5] At this time, Mr Bristow read and accepted the terms of the Programmed Casual Contract.[6]

The Programmed Casual Contract covers casual engagement with Programmed or any of its related bodies corporate. The Programmed Casual Contract relevantly provides:

1. CASUAL EMPLOYMENT
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.

2. COMMENCEMENT DATE
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.
3. 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 or 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.
(e)     If you accept an assignment for a specific or minimum period of time, you must complete the specified or minimum period of time. Should you elect not to complete the assignment for whatever reason, you must inform Programmed immediately as this may affect your eligibility for future assignments.
(f)   You must notify Programmed at least 1 hour before normal start time on each day you are unable to attend during any period of an assignment.
(g)    Programmed may immediately terminate your assignment if you falsely claim to hold a vocational, academic or professional qualification that is necessary to perform the assignment.
(h)    To abide by the site requirements for wearing Personal Protective Equipment. You will ensure that your Personal Protective Equipment will be kept in good condition.
(i)   To undertake police checks at your own expense, either whilst on assignment (at the request of Programmed or its client) or prior to being offered an assignment if requested to do so by Programmed.
(j)   To abide by the relevant road traffic legislation when operating any client-supplied plant or machinery. Any traffic infringements sustained whilst operating such plant or machinery will be your responsibility.
(k)     That you may, at the very least, be held responsible for any insurance excess in the event or any damage to a client’s plant and or machinery caused by your negligence.

Mr Bristow was unsuccessful in his application for the warehouse role.

Since the time Mr Bristow completed his registration and agreed to the Programmed Casual Contract, he has received texts and emails from Programmed notifying him of potential assignments with various Programmed clients.[7]

In September 2022, Mr Bristow applied through Programmed for a role as a dump truck driver at BHP’s Mt Keith mine. The Applicant was not successful in this application.[8]

In October 2022, the Applicant contacted Daniel Brewer, BHP Warehouse Supervisor at Jimblebar, regarding a potential warehouse role. Mr Brewer referred him through to Programmed.[9]

On or around 29 November 2022, the Applicant commenced his Programmed assignment at Jimblebar as a Supply Officer. The Applicant received a PSW Site Information Sheet which set out the terms and conditions for the Jimblebar assignment. [10] On or around 13 December 2022, the Applicant commenced his first swing on site. On site, the Applicant reported to Mr Brewer.

Observations on the evidence

At the hearing Mr Bristow, Ms Narkle and Mr Peter Narkle gave evidence in support of Mr Bristow’s case. The Respondent called Ms Keira Nguyen (Programmed Workplace Relations Manager); Ms Lee-Anne Roe (Programmed Account Manager); and Mr Jeremy Piotrowski (Programmed General Manager Mining West), to give evidence.

It is worth noting that the parties provided detailed evidence that was meaningful to the parties, particularly to Mr Bristow in terms of the events that occurred against the backdrop of his recent family loss. I acknowledge the significance of the evidence and events to Mr Bristow and his family. However, that does not mean that all the evidence was relevant to the question of whether Mr Bristow was dismissed.

Accordingly, I do not traverse all the evidence and factual disputes between the parties.

I found that most, if not all the relevant factual disputes between the parties were more to do with different matters of interpretation of events or based upon each witness’s understanding of the circumstances.

Where witnesses gave evidence on conversations or events they did not participate in or directly hear, I have not given that evidence weight.

Where witnesses expressed opinions on matters that are for the Commission to decide, I have treated such ‘evidence’ as submissions.

To the extent that either party asserted facts outside of sworn evidence, I have not relied on those facts in reaching any findings.

The Applicant

I found Mr Bristow to be a generally honest and direct witness under cross-examination.

Mr Bristow was upfront about the fact that he is overwhelmed in stressful situations and can find it difficult to explain himself.[11] Mr Bristow relies on his mother, Ms Narkle, for support in stressful situations,[12] and she spoke on his behalf throughout much of the events leading up to the application and throughout the proceedings.

Ms Kerryn Narkle

Ms Narkle is the Applicant’s mother. Ms Narkle is employed by BHP as a Production Technician and had only recently commenced at Jimblebar.[13]

Ms Narkle also has extensive experience in the fields of labour hire; recruitment; accounts and payroll; training; compliance; and human resources.[14]

Ms Narkle was both a witness and Mr Bristow’s representative in these proceedings. Because of this, Ms Narkle had a challenging balancing act, which became evident in her testimony and submissions.

During cross-examination, Ms Narkle had difficulty separating her evidence as to what she had personally seen and heard from the Applicant’s general case theory. There were times where Ms Narkle did not answer questions directly and would instead answer with submissions on the Applicant’s overall case.

The same was true when Ms Narkle made closing oral submissions – she frequently asserted facts from the bar table.

This is not a criticism of Ms Narkle’s abilities; it is difficult to be both witness and advocate, especially for someone close to you.

However, the cross-over in Ms Narkle’s roles throughout the proceedings is a factor that I have taken into consideration when assessing her evidence.

Mr Peter Narkle

Mr Narkle is the Applicant’s stepfather. Mr Narkle is employed by BHP at Jimblebar Mine as a Production Technician. He has worked for BHP in this capacity for over nine years.

Mr Narkle’s evidence was tendered unchallenged. Mr Narkle’s evidence was that he was not a participant in the discussions between parties. Mr Narkle’s evidence carried little probative value in assessing whether Mr Bristow was dismissed by the Respondent.

Ms Keira Nguyen

Ms Nguyen is employed by Programmed as a Workplace Relations Manager. She has been employed by Programmed for approximately 7 years and 9 months.

Ms Nguyen’s evidence was relevant in establishing Programmed’s induction process and how the business operates generally.

Ms Nguyen gave evidence that:[15]

It is common for Programmed to have employees coming and going from one worksite to the next and that there may be a gap of several weeks or months in between assignments.
If a Programmed employee is offered an assignment they receive additional information about the work they will do, the rate of pay and other site-specific information. This is referred to as the Site Information or Assignment sheet.
Employees are offered work assignments in accordance with the needs of Programmed’s clients. As a result, an employee’s assignment will generally conclude due to the operating requirements of the client.
Generally, when an assignment concludes the client will contact the Account Manager and advise which staff are no longer required. The Account Manager then has the responsibility of informing the relevant Programmed employees.
Termination of employment occurs when Programmed has determined that it will no longer offer an employee any further assignments. The employee’s name is removed from Programmed’s internal database and they are unavailable for further assignments.
Decisions to terminate the employment of an employee are made by the person(s) responsible for the management of the employee. This is generally the Account Manager, Area Manager and/or the General Manager.
When Programmed terminates an employee, the employee receives a formal termination of employment letter.

I found Ms Nguyen to be an honest witness.

Ms Lee-Anne Roe

Ms Roe is employed by Programmed as an Account Manager. She has been employed by Programmed for nine months and has been located at Programmed’s Newman branch since February 2023.[16]

Ms Roe’s role involves assisting employees once they have been mobilised to site. Ms Roe handles HR issues; counselling support; assistance with progression and training; safety; employee well-being; and other employment services for the workers.[17]

Relevantly, Ms Roe manages Programmed employees on several BHP worksites, including Jimblebar, Whaleback and Eastern Ridge.[18]

Ms Roe gave the following evidence on Programmed’s internal employee database:[19]

Each employee has a ‘candidate card’ that includes the employee number, information about the employee, where they have been placed and other similar information.
If an employee is dismissed, the Account Manager updates the candidate card to list the employee as ‘inactive’.

To list someone as inactive, the Account Manager must record the reasons for the employee being listed as inactive. This is done through a drop-down menu that requires the Manager to nominate the reasons for listing the employee as inactive.
If an employee is inactive, it means that Programmed will not give the employee any further assignments.

Ms Roe has never listed a Programmed employee as inactive during her time with Programmed. Ms Roe provided a screenshot of Mr Bristow’s candidate card as of 27 July 2023, which showed that Mr Bristow was marked as ‘active’.[20]

I found Ms Roe to be an honest and credible witness. Much of Mr Bristow’s grievance with his situation focused on Ms Roe. However, from Ms Roe’s testimony it was clear that she had sincere empathy for Mr Bristow and had grappled with how to handle his situation.

Mr Jeremy Piotrowski

Mr Piotrowski is the General Manager Mining West for Programmed. He has been employed by Programmed since 8 March 2005. Mr Piotrowski oversees the whole of Programmed’s Mining Division operations in Western Australia.[21]

Due to the nature of Mr Piotrowski’s role, he does not normally get directly involved in the management of Programmed staff at the individual employee level. With Mr Bristow, he became involved to support Ms Roe. This is because Ms Roe is relatively new to her role at Programmed and because Ms Narkle involved BHP in her communications to Programmed.[22]

I found Mr Piotrowski gave his evidence honestly. There were times during cross-examination where he was unable to recall specific details or words used during phone calls. This is not unusual given the phone conversations occurred approximately three months ago.

I found that Mr Piotrowski genuinely wanted to assist Mr Bristow. During cross-examination, Ms Narkle said the following about Mr Piotrowski:[23]

Mr Piotrowski put a considerable amount of time into speaking with you over those days?‑‑‑He did.
That wasn't just business but pleasantries and taking a real interest as well?‑‑‑Look, he was amazing, I have to say. I felt the calls with Jeremy, we truly felt that giving the time - from my perspective at that time, I was trying to help Brayden facilitate to maintain the employment relationship and stay working. What parent wouldn't want to try to help their child do that, son do that, whatever? That was my - and I did find Jeremy to be warm and interested and, you know, he offered his condolences, he asked about Mum's funeral, you know, there was - there was lots of discussion outside of Brayden and this matter.

Mr Piotrowski also gave evidence that he had also checked Mr Bristow’s candidate card and that Mr Bristow is still marked as active in the Programmed internal database.[24]

The events that led to this matter

15 May 2023

On 15 May 2023, Mr Bristow was at home on the off swing of his roster. He was due to fly back to site the next day.[25]

That day at approximately 2:45pm, Mr Bristow was in the car with Ms Narkle and Mr Narkle. Ms Narkle received a phone call from Mr Bristow’s cousin, who relayed the sad news that Ms Narkle’s mother had passed unexpectedly.

Shortly after this, at approximately 3:38pm and 3:55pm, Mr Bristow attempted to call Mr Brewer to let him know that he would not be able to return to site the next day as scheduled. As Mr Brewer did not answer Mr Bristow’s calls, Mr Bristow called the Warehouse Supervisor Phone on site. BHP employee Jordan Fox answered the call.

Mr Bristow explained to Mr Fox that his grandmother had passed and that he would not be able to return to site as scheduled.[26] Mr Fox indicated to Mr Bristow that he would let the relevant person know.

Shortly after this, Ms Roe received a phone call from Ms Phoebe McMahon. Ms McMahon is the BHP Superintendent for Jimblebar.

Ms McMahon informed Ms Roe that Mr Bristow’s services were no longer required on site and that he was being demobilised.[27] Ms McMahon also informed Ms Roe about Mr Bristow’s recent loss of his grandmother.[28]

Ms Roe made the decision to contact Mr Bristow as soon as possible so that he could come to terms with the information and have the time to think about alternate work.[29]

At 4:47pm, Ms Roe attempted to call Mr Bristow. Mr Bristow was at Ms Narkle’s house along with other family members. Ms Roe left a voice message asking Mr Bristow to call her back. Ms Roe shortly followed up her voice message with a text message.

Mr Bristow called and spoke to Ms Roe approximately 10 minutes after her missed call. Their call went for approximately 22 minutes.

What was communicated on the phone call is disputed by the parties. Effectively, the parties disagree whether during this phone call Ms Roe informed Mr Bristow that his assignment at Jimblebar was concluded.

Mr Bristow contends that during this phone call:[30]

· Ms Roe relayed that she had received a call from BHP and informed that Mr Bristow had attendance issues;

· Ms Roe asked if Mr Bristow would be better suited to working at BHP Whaleback or finding work closer to home;

· he expressed that he was happy working at Jimblebar as his mother and step-father work there;

· he explained some of his recent personal tragedies that had affected his attendance; and

· Ms Roe asked him if he had ever worked as a casual before, to which Mr Bristow indicated that he had. However, Mr Bristow felt that he struggled to be clear in expressing what he wanted to say.

Mr Bristow’s evidence was that during the call he repeatedly asked Ms Roe if his employment with BHP was terminated and in response, Ms Roe explained that the nature of casual employment is that you are not guaranteed work, and that she did not tell Mr Bristow that his employment with BHP was concluded.[31]

Mr Bristow’s evidence was that the phone call ended as he felt overwhelmed and asked if he could call back in a few days to arrange his return to site, to which Ms Roe agreed.

Ms Roe’s evidence was that during the phone call:[32]

·   she explained to Mr Bristow that he was no longer needed by BHP, and that she tried to let him down gently;
·   Mr Bristow did not seem to understand what was happening and kept asking if he was getting sacked;
·   she repeatedly said to Mr Bristow that he was not being sacked and that Programmed would find other work for him;
·   she asked Mr Bristow if he would want to work closer to home or on a different worksite; and
·   the phone call ended with a discussion about Mr Bristow taking time to mourn the loss of his grandmother and to let her know when he was ready to resume work.

Under cross-examination, Mr Bristow gave evidence that during the phone call with Ms Roe he was standing out the front of Ms Narkle’s house. During the phone call different family members came up to him to ask who he was talking to and/or to inquire about his well-being. Mr Bristow would pull the phone away from his ear to indicate that he was on the phone with Programmed.[33]

Mr Bristow also acknowledged under cross-examination that he was understandably very stressed and found that phone call confusing.[34]

17 May 2023

At 8:37am on 17 May 2023, Mr Bristow emailed Ms Roe asking her to arrange a flight for him back to Jimblebar on 19 May 2023.[35]

Ms Roe spoke with Mr Bristow later that day at 3:26pm. During this phone call Ms Roe explained to Mr Bristow that his services with BHP had been concluded.[36]

Mr Bristow was understandably distraught given his recent circumstances.

Both parties agree that during this phone call, Ms Roe said to Mr Bristow that the Respondent could source him further assignments. It is also agreed that Mr Bristow rejected the offer. The phone call ended when Mr Bristow asked Ms Roe to send him an email confirming their phone discussion.[37]

At 3:51pm, Ms Roe sent the following email to Mr Bristow:[38]

Good afternoon Brayden,
As discussed,
Our client has advised us that your service has concluded on the Jimblebar site.
As a contract labour hire company and you as a candidate would be aware that labour hire employment conditions are unique and not comparable to Full/Permanent employee conditions.
We are prepared and able to source alternative employment opportunities on other sites and or with other clients should you desire and we await your written instructions.
In addition, we are required to conduct a room clearance of the accommodation inc amp and advise you this will be done over the coming days.
Personal belongings will be documented and packed on your behalf – if you have the ability to have the room cleared by another means, please confirm via return email.
Alternatively, our records show your home address is noted below and items will be posted to this address unless advised otherwise.
[Redacted]
We await your confirmation of alternative employment opportunities, room clearance alternative option and home address confirmation and respectfully request a reply within 24 hours please.
Yours sincerely,
Lee Roe

At 6:28pm, Ms Narkle sent the below email in response to Ms Roe:[39]

My name is Kerryn Narkle and I am Brayden Bristow’s mother. I am authorised to liaise with you on his behalf.
Further to your email below, please understand that any of Brayden’s personal belongings will be collected by Peter Narkle, his step-father, on Friday and that there is no authorisation given for anyone to clean Brayden’s room nor pack and transport his belongings before then. They will be collected and brought home by Peter.
Please provide me with your State Manager’s contact details. I wish to ensure that he is aware of your conduct on Monday afternoon following the sudden passing of my mother and then again today with your insensitive and delayed email response to Brayden as per below.
Please also provide us, in writing, with the content of the discussion held with Brayden for over 20 minutes on Monday afternoon whilst our family were visiting us to pay their respects on the sudden loss of our loved one. We are confused as to why Brayden had a flight booked to site on Tuesday morning and following the passing of his Nan, has had his employment terminated. These actions are disgraceful and do not in any way fall within BHP’s Charter Values, particularly respect.
I await your response at your earliest.
Kind Regards
Kerryn Narkle

Ms Narkle copied Mr Brewer and Ms McMahon into the email.

Much of Mr Bristow’s and Ms Narkle’s conduct, evidence and submissions in this matter focus on whether Mr Bristow first learned of his demobilisation on 15 May 2023 or 17 May 2023.

I find that whether Mr Bristow was told on 15 May or 17 May is not relevant to the question of whether he was dismissed. What is relevant is that:

·   by 17 May Mr Bristow understood that his assignment at Jimblebar had come to an end;
·   Ms Roe told Mr Bristow verbally and in writing that his employment had not been terminated; and
·   that if Mr Bristow wished, Programmed could source alternative work opportunities.

However, for completeness I find that Ms Roe did tell Mr Bristow he was being demobilised on 15 May 2023. It does not seem credible that Ms Roe called Mr Bristow to talk to him for 22 minutes about other work sites, the nature of casual work and to reassure him that his employment had not been terminated without the context of demobilisation.

Mr Bristow was in understandable emotional distress from losing his grandmother that day. Compounded with the fact that he was distracted by other family members approaching him, I find that the Applicant either did not hear Ms Roe’s exact words or did not understand them.

19 May 2023

On 19 May 2023, at 3:48pm, Ms Narkle sent the below email to Ms Roe, again copying in Mr Brewer and Ms McMahon:

Good afternoon Lee
I am astounded that you, nor anyone else, have chosen not to respond to me regarding my email below. At the very least you could have offered my family your condolences and committed yourself to following up at some stage for a chat.
I am awaiting information from you as requested and I again request that you provide me an avenue in which to escalate our concerns at your handling of Brayden’s disgraceful dismissal. Brayden had a workplace right to request bereavement leave (loss of a grandparent).
On Monday afternoon, Brayden exercised that right to which he is entitled as a Casual Employee under the National Employment Standards and the Fair Work Act. He requested bereavement leave and you took adverse action by terminating his employment. Your actions are against the law. You did not consider the general protections under the Fair Work Act that which apply, even to casuals.
This matter is a serious one, not only from the very disrespectful and insensitive approach to Brayden within the two hour period of us finding out about our loved one, but even knowing we had suffered a loss you were texting Brayden asking him to call your [sic] urgently to which he did. In addition, the disrespect shown to two full time employees of BHP. Then there is the consideration from an employment law perspective.
I am aware you have just emailed Brayden about is belongings. We authorise those to be packed in to boxes and clearly marked “for collection by Peter Narkle, BHP Drill and Blast”. These will be collected Tuesday week.
In the meantime, please provide information as requested.
Kind regards,
Kerryn Narkle

At this point Ms Roe reached out to Mr Piotrowski for assistance in handling Mr Bristow’s situation.[40]

23 May 2023

At 4:56pm, Mr Piotrowski wrote to Mr Bristow and Ms Narkle:

Hello, Kerryn,
Lee Roe from my Newman branch has passed your email’s to me for review as per your request below.
Firstly, please accept my condolences to you and your family for the passing of your mother, I appreciate this must be a very difficult time.
Regarding your emails, can I start by saying I hope that you appreciate Programmed has an obligation regarding privacy and personal confidentiality and I can see nothing from Brayden authorizing you to be included in any personal information. I understand your point and perspective as his mother but the authorization needs to come from our employee - Brayden himself. Of course when I can have something in writing from Brayden, I am more than happy to talk through the events with yourself and Brayden that have led to the outcome you refer and the resolutions that have been offered.
I am more than happy to meet when the time is right for you and Brayden and welcome you to pass on my details to Brayden so he can send to me directly his authorization. I would like to work through this so you feel satisfied with the outcome and our perspectives and actions are explained.
In the meantime, if it helps, Programmed have a confidential EAP service that is available to both Brayden and his family. Our free EAP can be contacted on 1300 778 069.
I look forward to hearing from Brayden and creating some time to discuss this.
Thank you
Jeremy Piotrowski

Mr Bristow accordingly provided written authority for Ms Narkle to speak on his behalf.

26 May 2023

On 2:00pm on 26 May 2023, Mr Bristow, Ms Narkle and Mr Piotrowski conducted a meeting on MS Teams, with Ms Nguyen participating as an observer. This meeting went for approximately 45 to 60 minutes.

Each witness had slightly different recall of the details of this meeting and placed differing emphases on topics in the discussion. This is not unusual.

In summary, the points of discussion that were either agreed by the parties or not disputed were:[41]

·   Mr Bristow and/or Ms Narkle explained the events of 15 May 2023 from Mr Bristow’s perspective, including the call with Ms Roe;
·   Mr Bristow and/or Ms Narkle felt that Ms Roe had overstepped her authority and had terminated Mr Bristow’s employment without authority from BHP. This was on the basis of a conversation that Mr and Mrs Narkle had with Mr Brewer;
·   Mr Bristow still had flights booked to site that were visible on his Qantas and Workforce Kiosk apps. Mr Piotrowski indicated that he would investigate this.
·   Mr Piotrowski explained to Mr Bristow that his assignment had been finished up due to operational requirements and that just because he had been demobilised, it did not mean that his employment had been terminated;
·   Mr Piotrowski mentioned that he had spoken to Ms Roe, and Ms Roe stated that she had raised the possibility of a role at an FMG site for Mr Bristow;
·   Mr Piotrowski committed that he would have discussions with BHP to investigate the reasons for Mr Bristow’s demobilisation and that he would ask if there was a possibility for Mr Bristow to be reinstated at Jimblebar; and
·   Mr Piotrowski would conduct his inquiries and contact Mr Bristow and Ms Narkle to update them.

After the meeting, Ms Narkle and Mr Bristow spoke about Mr Piotrowski’s comment about an FMG role. Ms Narkle called Mr Piotrowski at approximately 2:51pm to clarify. Ms Narkle informed Mr Piotrowski that Mr Bristow would like to know further information about other roles.

29 May 2023

At 3:28pm on 29 May 2023, Mr Piotrowski called Ms Narkle. Mr Bristow joined this call on loudspeaker partway through the conversation.

Mr Piotrowski informed Mr Bristow and Ms Narkle that he had a meeting scheduled with BHP senior management the next day. Mr Piotrowski advised that he would ask BHP to consider reinstating Mr Bristow.

The parties agree that there was discussion about other possible work opportunities. Mr Piotrowski’s evidence was that he reiterated that there may be other worksites where the Applicant could be placed, such as FMG sites.[42]

Mr Bristow’s and Ms Narkle’s evidence is that Mr Bristow indicated he would be interested in Dump Truck Operation roles. Mr Piotrowski’s evidence corroborated this. However, Mr Piotrowski’s further evidence was that he when he asked what Mr Bristow’s desired solution was, it was to be reinstated at Jimblebar.[43]

During this phone call, Mr Bristow and/or Ms Narkle indicated to Mr Piotrowski that Mr Bristow had financial pressure given he was no longer on site with a car payment due soon. There was some contention between the parties over who exactly relayed this information to Mr Piotrowski, but what is relevant is that the information was relayed.

During this phone call Ms Narkle also informed Mr Piotrowski that Mr Bristow had previously unsuccessfully applied for a role at BHP Mt Keith.[44] Mr Piotrowski indicated that he would conduct a ‘deep dive’ into Mr Bristow’s file.[45]

1 June 2023

On 1 June 2023, Mr Piotrowski spoke with Annabelle Blom, with Ms Nguyen participating as an observer. Ms Blom is the BHP General Manager for Jimblebar. Mr Piotrowski had previously spoken with Ms McMahon, who had confirmed that BHP no longer required the Applicant at Jimblebar. Ms McMahon had also recommended that Mr Piotrowski speak with Ms Blom to discuss Mr Bristow’s demobilisation.[46]

During Mr Piotrowski’s phone conversation with Ms Blom, Ms Blom confirmed that BHP no longer required Mr Bristow’s services and that his role was part of several roles that had previously been scheduled to reduce. That reduction had not initially occurred because there had been a temporary extension; however, that extension period had come to an end and the roles were no longer required.[47]

Mr Piotrowski asked Ms Blom if there was any way that BHP would reconsider their decision to demobilise Mr Bristow, or whether BHP could accommodate a role for the Mr Bristow. Mr Piotrowski was told no.[48]

After the phone call with Ms Blom, Mr Piotrowski sent the following email:[49]

Hi Annabelle
Thanks for your time just now.
As discussed, if you could supply any evidence regarding the reduction in operational requirements from 31st March to the 31st May, that would really help us with our response to Mr. Bristow.
Thank you, we look forward to receiving the information and closing this out.
Jeremy

2 June 2023

At 8:11am on 2 June 2023, Ms Blom replied to Mr Piotrowski’s email:[50]

Hello Jeremy,
I confirm that I have received email evidence that shows the Head of Warehouse approving additional labour hire for operational reasons in the JB forward store, until March 2023. The extension to the end of May was verbally approved in a meeting held on the 21st April however with clear requirement to return to budget headcount levels
by end of May.
The communications hold other more sensitive content so I won’t share them as is unless this case requires a legal response.
I am satisfied that there was no adverse action taken against Brayden, he was the last of the above head count labour hire remaining in the warehouse and there is clear evidence showing the requirement from senior leaders to return to budget levels by 31st May. The timing of when he requested leave and his end of assignment is an unfortunate coincidence that occurred on his last intended swing in the warehouse.
Thanks
Annabelle

At 3:05pm, Mr Piotrowski called Ms Narkle. This call lasted around 10 minutes.[51]

At the start of the conversation Ms Narkle moved to her study, next to Mr Bristow’s room. Mr Bristow was in his room playing an online game on his computer. Mr Bristow did not pause his game and so did not participate in the phone call.[52]

Mr Bristow’s evidence under cross-examination was that he only heard parts of what Ms Narkle said on the phone to Mr Piotrowski, and that he did not hear anything that Mr Piotrowski said.[53]

Mr Piotrowski informed Ms Narkle that he had met with the BHP General Manager and had finalised his investigation.[54] Mr Piotrowski further informed Ms Narkle that he was satisfied that the instruction to demobilise Mr Bristow had come from BHP.[55]

Ms Narkle’s evidence was that Mr Piotrowski informed her that he had found that Ms Roe had informed Mr Bristow about his services concluding at Jimblebar on 15 May 2023.[56]

Both Ms Narkle and Mr Piotrowski agree that Ms Narkle said words to the effect of, ‘that’s a lie’, and that the mood of the phone call turned hostile.[57]

Ms Narkle asked Mr Piotrowski how he had gone with the ‘deep dive’. Mr Piotrowski asked Ms Narkle what she meant, which Ms Narkle responded with words to the effect, ‘oh ok, I see where this is going’.[58] Ms Narkle did not further clarify what she meant.

Ms Narkle’s evidence was that it was an agreed action from the phone conversation on 29 May 2023 that Mr Piotrowski would investigate the Applicant’s employment file, in particular, Mr Bristow’s prior failed job applications.[59]

Mr Piotrowski’s evidence was that he was exhausted and frustrated and was not sure how to respond as he had just informed Ms Narkle of the outcome of his investigation into the Mr Bristow’s demobilisation.[60] Mr Piotrowski’s evidence was that he had followed through on his primary commitment to confirm that Jimblebar was not an option and the reasons for Mr Bristow’s assignment concluding.[61]

During the phone call, Mr Piotrowski advised Ms Narkle that Programmed would make a goodwill payment to the Applicant of 60 hours pay and waive an outstanding overpayment of $75. This represented the hours Mr Bristow would have worked on his final swing if this assignment had not been concluded.[62]

After this phone call, Mr Piotrowski went to the Programmed payroll department. Mr Piotrowski spoke to Nikola Hardy, a payroll employee, and asked her to make the goodwill payment to Mr Bristow as soon as possible.[63]

It was Mr Piotrowski’s evidence that he wanted the payment to be made as soon as possible to assist Mr Bristow’s financial pressures.[64]

Mr Piotrowski explained to Ms Hardy that Mr Bristow was a casual and was being paid out at the end of his contract. Mr Piotrowski’s evidence was that it is unusual for a casual to be paid anything at the conclusion of an assignment, as casual employees only get paid when they perform work and submit a timesheet.[65]

Accordingly, to make the goodwill payment to Mr Bristow, Mr Piotrowski had to authorise the payment in writing by signing a payment authorisation form. Mr Piotrowski signed the payment authorisation form, then scanned it, with the scanner then sending it to his emails (Scanner Email). Mr Piotrowski then forwarded the Scanner Email to Ms Hardy to action.[66]

On the payment authorisation form, in the field ‘Details and Reason’ it states, ‘1 week payment in lieu’. Mr Piotrowski explained that when he was presented with the form, he explained to Ms Hardy that the payment was one week in lieu of payment for Mr Bristow not working the entirety of the days he would have worked if he had not been demobilised.[67]

In cross-examination, Mr Piotrowski was challenged on when he sent the payment authorisation form – specifically, whether he sent it before or after he spoke with Ms Narkle. There was confusion regarding the email to Ms Hardy, as the timestamp on the email to Ms Hardy was Friday 2 June 2:59pm. However, the Scanner Email recorded the scan date as ‘6.02.2023 15:20:52 (+0800)’.

Mr Bristow’s representative seemed to make the argument in cross-examination that Mr Piotrowski had prepared the payment authorisation form before he spoke with Ms Narkle, and that therefore his evidence on this point could not be relied upon.[68]

Counsel for the Respondent made the submission that this was a timezone issue – the email to Ms Hardy had been printed out or prepared by someone in the eastern states, and that the relevant timestamp was the one on the Scanner Email, as it contained a timezone reference.[69] I accept this argument. Accordingly, I accept Mr Piotrowski’s evidence that he prepared and scanned the payment authorisation form to Ms Hardy after he spoke with Ms Narkle.

At 3:27pm, Mr Piotrowski sent the following to Mr Bristow and Ms Narkle:[70]

Hi Brayden,
I appreciate that the last few weeks have been difficult and again please accept my sincerest condolences.
Thank you for your patience as I investigated the events leading up to the conclusion of your assignment with BHP.
I wish to confirm the following:
Your assignment with BHP concluded because of changes to BHP’s operational requirements. Specifically, that the approval for the usage of additional labour hire which was originally due to expire in March 2023 came to an end at the end of May 2023.
We have received confirmation that site had a requirement to return to budget headcount levels by 31 May and as such, your assignment was concluded.
The direction to return to budget headcount levels came from senior leaders of BHP.
As you are aware, PSW is a labour hire company and we supply labour to site on an as needs basis. The relationship between PSW and BHP is governed by a commercial contract. That contract provides that BHP can direct us to remove any persons from BHP sites, and we must comply with such request.
With that being said, I wish to reiterate that although your assignment with BHP has concluded, you remain an employee of PSW. I understand Lee Roe had discussed future work with you which at the time you declined however as discussed with Kerryn, there are options that we can offer that may be suitable if you are interested? Please reach out to me directly via email or mobile to discuss further work opportunities if you would like Programmed to discuss options.
Finally, as your employer, the company would like to provide you with 60 hours of pay and waive a current overpayment in our system to assist with your financial circumstances which was previously disclosed by your mother in a phone call with myself. I ask that you keep this matter confidential and refrain from discussing this payment with existing BHP or Programmed employees. I have directed this payment to be processed immediately.
I hope and trust this information provides you with some comfort that your assignment was not concluded as a result of your bereavement leave.

Neither Mr Bristow nor Ms Narkle replied to this email.

The Applicant’s ATO Income Statement

At 3:47pm on 2 June 2023, twenty minutes after Mr Piotrowski’s email, Mr Bristow received a system generated email from Programmed advising that his Employment Income Statement for the 2022/2023 financial year had been successfully reported to the ATO (Finalised Pay Notification).[71]

On 3 June 2023, Mr Bristow logged into his MyGov account and found that his income statement for his employment with the Respondent was ‘tax ready’.[72]

Mr Bristow downloaded his tax statement from MyGov, which stated that the period of his employment with the Respondent was 13 December 2022 to 20 May 2023.[73]

Mr Bristow later lodged a Freedom of Information request with the ATO to find out ‘what cessation code was entered by HVA that meant [he] was tax ready on 3/6/2023?’.

Mr Bristow was informed that his final payment from the Respondent was classified as an Employment Termination Payment (ETP) Code S.[74]

Ms Narkle tendered with her evidence a document from the ATO entitled ‘Single Touch Payroll Phase 2 employer reporting guidelines’ (STP Guidelines) that is valid as of 10 February 2023.[75]

In the STP Guidelines, it lists the different types of ETPs, including:

3. Split ETP type R (ETP type S) – multiple payment of life benefit ETP type R for the same termination of employment, where the later payment is paid in a later financial year than the original payment.

Mr Piotrowski’s evidence is that it was not his intention for the goodwill payment of 60-hours to be a termination payment and he did not give that direction. His evidence was that if it was done administratively by the payroll team, it was done in error.[76] I accept his evidence on this point.

Submissions

The Applicant

Mr Bristow’s submission is that both the employment relationship and employment contract ended.

Mr Bristow’s argument on when exactly the employment relationship was terminated shifted over the course of the proceedings. In Mr Bristow’s Form F8 and in his written submissions, he contended the date of dismissal was 17 May 2023.

However, during closing submissions at hearing, Mr Bristow’s position on when he was dismissed changed to 2 June 2023.[77]

Mr Bristow seemed to advance two positions in support of the submission that he was dismissed on 2 June 2023:

(a)The first is that through the sending of the Finalised Pay Notification, or through a combination of the Finalised Pay Notification and Mr Piotrowski’s phone call on 2 June 2023, Mr Piotrowski terminated the employment relationship; and/or
(b)Ms Roe’s and Mr Piotrowski’s offers to find him other work were not actually offers of work, as they were not offers of formal assignments.[78] Further, that Mr Piotrowski did not action any of the agreed resolutions made during the calls on 26 May and 29 May to seek information from BHP and to provide further work assignments for Mr Bristow.[79] Accordingly, this had the effect of dismissing Mr Bristow.

Mr Bristow also submits that he did not leave the employment relationship voluntarily and that he had been actively and constructively working to maintain the employment relationship in the hope of securing another work assignment.[80]

In closing, Mr Bristow’s representative also made the submission that Mr Piotrowski’s evidence that he did not give any direction for Mr Bristow’s dismissal should not be believed.[81]

The Respondent

The Respondent submits that the relationship between Mr Bristow and Respondent was typical of that in labour hire. Mr Bristow agreed to a Casual Employee Contract, which made it clear that his employment was casual, there was not expectation or guarantee of work, and that he would be given assignments that could conclude at any time.

The Respondent contends that Mr Bristow’s assignment at Jimblebar came to an end at BHP’s initiative. Subsequently, the Respondent continued to offer to find alternative assignments for Mr Bristow and did not seek to terminate the employment relationship.

In closing, counsel for the Respondent submitted that the question for the Commission in this case is effectively whether Mr Bristow was in a gap between assignments or whether his option of receiving assignments had come to an end.[82]

The Respondent places emphasis on the evidence of Ms Roe, Ms Nguyen and Mr Piotrowski that at no point was Mr Bristow told that his employment had been terminated, and in fact repeated throughout that his employment remained on foot.

The Respondent submits that reinstatement at Jimblebar or a further assignment at Jimblebar was the understood priority for Mr Bristow, and failing that, exploring other work assignments.[83]

With regards to the Finalised Pay Notification sent to Mr Bristow, the Respondent submits that it was a mistake attributable to human error. The Respondent in closing contended that the nominated end date of 20 May 2023 on the Employee Income Statement, and the ETP Code S are clearly not applicable to Mr Bristow’s situation, and this further supports the position that there was a mistake.[84]

On this point, the Respondent referred to the recent decision of Trewin v Ella Bache Sale (Trewin).[85] In Trewin, the employer did not intend to roster the applicant for a month and so removed the applicant from their payroll to avoid paying a payroll administration fee to a third party. This administrative action triggered a notification to the Australian Taxation Office and Centrelink that the employment had ceased.

In Trewin, the Commission objectively assessed the relevant circumstances and found that the administrative action was not conduct that objectively brought the employment relationship to an end.

Relevant legislation

The Application was made pursuant to s 365 of the Act, which 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 association 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.

‘Dismissed’ is defined in s 12 of the Act, which refers to s 386. Section 386 of the Act relevantly provides:

A person has been dismissed if:
the person’s employment with his or her employer has been terminated on the employer’s initiative; or
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 Full Bench in Khayam v Navitas English Pty Ltd t/a Navtias English (Navitas) comprehensively considered the operation of s 386(1). Relevantly, the Full Bench observed at [71]:

“It is reasonably apparent that, notwithstanding that it is expressed as an exclusionary provision, the purpose of s 384(2)(a) is to confirm that casual employees of the type referred to are included in the operation of Pt 3-2 and are able to make an application for an unfair dismissal remedy. However there is a difficulty in that, conventionally, casual employment is taken to be constructed of daily or shorter contracts of employment (although this is not a universal indicium of casual employment and in some cases the existence of a longer-term contract of employment may be inferred). Where a casual employee is taken to be engaged under a sequence of daily contracts, then if a casual completes their engagement on a particular day and is never thereafter engaged by the employer, contractually the employment has come to an end by agreement due to the effluxion of the contractual term rather than by any act by the employer to terminate the contract. If that situation was incapable of being characterised as a dismissal under s 386(1)(a) it would substantially or entirely defeat the operation of s 386(2)(a).”

And at [75]:

“Having regard to these propositions and the court decisions to which we have earlier referred, we consider that s 386(1)(a) should be interpreted and applied as follows:
(1)The analysis of whether there has been a termination at the initiative of the employer for the purpose of s 386(1)(a) is to be conducted by reference to termination of the employment relationship, not by reference to the termination of the contract of employment operative immediately before the cessation of the employment. This distinction is important in the case of an employment relationship made up of a sequence of time-limited contracts of employment, where the termination has occurred at the end of the term of the last of those contracts. In that situation, the analysis may, depending on the facts, require consideration of the circumstances of the entire employment relationship, not merely the terms of the final employment contract.

(2)As stated in Mohazab, the expression “termination at the initiative of the employer” is a reference to a termination that is brought about by an employer and which is not agreed to by the employee. In circumstances where the employment relationship is not left voluntarily by the employee, the focus of the inquiry is whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment.

(3)In Mahony v White the Full Court stated that a termination of employment may be done at the initiative of the employer even though it was not done by the employer. In circumstances where the parties to a time-limited contract have agreed that their contract will expire on a specified date but have not agreed on the termination of their employment relationship, it may be the case that the termination of employment is effected by the expiry of the contract, but that does not exclude the possibility that the termination of employment relationship occurred at the initiative of the employer - that is, as a result of some decision or act on the part of the employer that brought about that outcome…”

A subsequent full Bench in NSW Trains v James reaffirmed that s 386(1)(a) of the Act means termination of the employment relationship and/or the contract of employment, depending in part upon the factual and statutory context.[86]

It is uncontroversial that the Commission has on numerous occasions considered what constitutes dismissal in the context of the casual labour hire arrangement.[87] It is a feature of the casual labour hire relationship that there may be gaps in between assignments. Though the end of each assignment may be the end of an employment contract, it does not mean that the employment relationship has ended, and that the employer has dismissed the employee.

Consideration

In coming to this decision, I have had regard to the relevant evidence and submissions of the parties, even if they have not been expressly referred to in this decision.

The relevant question for determination is whether Mr Bristow was dismissed. This is to be assessed objectively on the evidence; it is not decided by reference to the subjective intention or beliefs of the parties involved.

I find that Mr Bristow was employed on a casual basis with Programmed. His employment was subject to the Programmed Casual Contract which set out that he would be offered assignments with Programmed’s clients which he could then accept or reject.

I find that Mr Bristow was not dismissed.

Mr Bristow’s argument that Mr Piotrowski terminated his employment on 2 June 2023 cannot succeed for the following reasons.

Firstly, I find in favour of Mr Piotrowski’s evidence that he did not give any instruction to terminate Mr Bristow’s employment at any point, but particularly on 2 June 2023 when he asked Ms Hardy to process the goodwill payment for Mr Bristow.

Though Mr Bristow’s representative made the argument in closing that Mr Piotrowski was lying about not giving an instruction to dismiss the Applicant, this is simply at odds with Mr Piotrowski’s actions throughout the events in question.

Mr Piotrowski was consistent in his communications with Mr Bristow and followed through on his commitment to discuss Mr Bristow’s situation with BHP. It is also at odds with Ms Narkle’s evidence about Mr Piotrowski’s character and actions referenced at [52] of this decision.

Mr Bristow also did not provide further reasons in support of the assertion in closing that Mr Piotrowski was lying about not giving the instruction to terminate Mr Bristow’s employment, beyond noting that Ms Hardy had not been called to give evidence.[88]

Secondly, I find that there was a mistake by Programmed’s payroll department in either understanding Mr Piotrowski’s instructions or a human error in processing the goodwill payment.

It was unchallenged that Mr Piotrowski intended the payment of 60 hours as a goodwill payment to assist Mr Bristow with his financial pressures. I also accept Mr Piotrowki’s evidence that it was rushed through on a Friday afternoon.

Mr Bristow attempted to argue that the end date of 20 May 2023 on his ATO Income Statement had significance in terms of his alleged dismissal. However, this is inconsistent with his own argument that he was dismissed on 2 June 2023. This supports the Respondent’s position that there was an administrative error or misunderstanding.

Mr Bristow also relied on the Respondent submitting an ETP Code S to the ATO. Mr Bristow conceded under cross-examination that ETP Code S did not make sense for his situation given an ETP Code S is a payment that is made over different financial years.[89] Again, this supports a finding that payroll made an administrative error or misunderstood Mr Piotrowski’s instructions.

Thirdly, Mr Bristow’s argument places a great deal of significance on Mr Piotrowski not reporting back with formal job assignments at the same time he relayed the results of his conversations with BHP on 2 June 2023. This is based on Mr Bristow’s and Ms Narkle’s belief that Mr Piotrowski was not following through on commitments made during the phone conversations on 23 May and 29 May. This is misguided.

Mr Piotrowski’s understanding of what Mr Bristow wanted was for him to find out what had happened with Mr Bristow’s position at Jimblebar and whether there was a chance of Mr Bristow getting his position back. If that was not possible, then the parties were to look at other options.

Mr Piotrowski did just that – he spoke with BHP, asked whether Mr Bristow could be reinstated, then reported that back to Mr Bristow and Ms Narkle.

I find that not only was Mr Piotrowski’s evidence on this point credible, but it is also not inconsistent with Mr Bristow’s and Ms Narkle’s evidence. I find that the participants to the conversations over May 2023 attributed different significance to parts of the discussions, which is not unusual.

Ms Narkle admits that during the phone call on 2 June 2023, the conversation turned hostile, and she was angry, which led to the phone call ending early. Mr Piotrowski still followed up with an email reaffirming that the Respondent was willing to find other assignments for Mr Bristow and for Mr Bristow to get in contact. At no point did Mr Bristow or Ms Narkle reply to this email.

Mr Piotrowski reporting back on the Jimblebar outcome before continuing discussions on other placements was not inconsistent or a sign of bad faith. It was also not a dismissal of Mr Bristow’s employment.

Accordingly, Mr Bristow’s application must be dismissed for want of jurisdiction. An order to this effect will issue separately.[90]

COMMISSIONER

Appearances:

K Narkle for the applicant.

R Malcolm and S Pack of Counsel for the respondent.

Hearing details:

2023.
Perth:
August 30 to 31

[1] Witness statement of Jeremy Piotrowski, Exhibit R5, at [3]. [5].

[2] [2022] FCAFC 152.

[3] Ibid at [51].

[4] Witness statement of Keira Nguyen, Exhibit R1, at [5] – [10].

[5] Witness statement of Brayden Bristow, Exhibit A1, at [2].

[6] Ibid, attachment BB01.

[7] Ibid, at [3].

[8] Ibid, at [4].

[9] Ibid, at [5].

[10] Witness statement of Keira Nguyen, Exhibit R1, at [23].

[11] Witness statement of Brayden Bristow, Exhibit A1, at [75].

[12] Witness statement of Kerryn Mai Narkle, Exhibit A2, preamble.

[13] Ibid.

[14] Ibid.

[15]Witness statement of Keira Nguyen, Exhibit R1, at [7] – [20].

[16] Witness statement of Lee-Anne Roe, Exhibit R3, at [1] – [2].

[17] Ibid, at [5] – [7].

[18] Ibid, at [9].

[19] Ibid, at [46] – [48].

[20] Ibid, at [49], [51], attachment LR8.

[21] Witness statement of Jeremy Piotrowski, Exhibit R5, at [1] – [4].

[22] Ibid, at [16], [19] – [21].

[23] Transcript, 30 August 2023, PN186 – 187.

[24] Second Witness Statement of Jeremy Piotrowski, Exhibit R6, at [27].

[25] Witness statement of Brayden Bristow, Exhibit A1, at [14].

[26] Witness statement of Brayden Bristow, Exhibit A1, at [18].

[27] Witness statement of Lee-Anne Roe, Exhibit R3, at [21]; Transcript, 30 August 2023, PN 1049.

[28] Transcript, 30 August 2023, PN 1029.

[29] Second witness statement of Lee-Anne Roe, Exhibit R4, at [3].

[30] Witness statement of Brayden Bristow, Exhibit A1, at [36] – [48].

[31] Ibid, at [50].

[32] Witness statement of Lee-Anne Roe, Exhibit R3, at [28] – [35].

[33] Transcript, 30 August 2023, PN 431-439.

[34] Ibid, PN 443-445.

[35] Witness statement of Brayden Bristow, Exhibit A1, at [57].

[36] Ibid, at [59].

[37] Ibid, at [60]; Witness statement of Lee-Anne Roe, Exhibit R3, at [42].

[38] Witness statement of Brayden Bristow, Exhibit A1, at [64], attachment BB16.

[39] Ibid, at [66], attachment BB29.

[40] Transcript, 30 August 2023, PN1096; Witness statement of Jeremy Piotrowski, Exhibit R5, at [19]-[21].

[41] Witness statement of Brayden Bristow, Exhibit A1, at [77] – [87]; Witness statement of Kerryn Mai Narkle, Exhibit A2, at [33] – [47]; Witness statement of Jeremy Piotrowski, Exhibit R5, at [28] – [35]; Witness statement of Keira Nguyen, Exhibit R1, at [26] – [31].

[42] Witness statement of Jeremy Piotrowski, Exhibit R5, at [39]

[43] Second Witness Statement of Jeremy Piotrowski, Exhibit R6, at [15].

[44] Witness statement of Kerryn Mai Narkle, Exhibit A1, at [60].

[45] Transcript, 30 August 2023, PN1352-1353.

[46] Transcript, 30 August 2023, PN 1473.

[47] Witness statement of Jeremy Piotrowski, Exhibit R5, at [40].

[48] Ibid, at [50].

[49] Ibid, attachment JP3.

[50] Ibid.

[51] Witness statement of Kerryn Mai Narkle, Exhibit A1, at [77]; Witness statement of Jeremy Piotrowski, Exhibit R5, at [58].

[52] Transcript, 30 August 2023, PN570 – 575.

[53] Ibid, PN576 – PN578.

[54] Ibid, at [79].

[55] Witness statement of Jeremy Piotrowski, Exhibit R5, at [55].

[56] Witness statement of Kerryn Mai Narkle, Exhibit A1, at [80]; Witness statement of Jeremy Piotrowski, Exhibit R5, at [56].

[57] Ibid.

[58] Witness statement of Kerryn Mai Narkle, Exhibit A1, at [82].

[59] Ibid.

[60] Second Witness Statement of Jeremy Piotrowski, Exhibit R6, at [21].

[61] Ibid, at [22].

[62] Ibid, at [36]; Witness statement of Kerryn Mai Narkle, Exhibit A1, at [81].

[63] Ibid, at [26].

[64] Ibid, at [27].

[65] Ibid, at [28].

[66] Ibid, at [28] and attachment JP-07.

[67] Ibid, at [27]; Transcript, 30 August 2023, PN1546.

[68] Transcript, 30 August 2023, PN1534 – 1540.

[69] Ibid, PN1527.

[70] Witness statement of Brayden Bristow, Exhibit A2, attachment BB24.

[71] Ibid, attachment BB25.

[72] Ibid, attachment BB26.

[73] Ibid, attachment BB25.

[74] Ibid, at [104].

[75] Witness statement of Kerryn Mai Narkle, Exhibit A1, at [96], attachment KMN 17.

[76] Witness statement of Jeremy Piotrowski, Exhibit R5, at [70].

[77] Transcript, 31 August 2023, PN1677.

[78] Ibid, PN1780 – PN1789.

[79] Applicant’s outline of submissions, 16 August 2023, page 1 at [7].

[80] Ibid, page 3 at [20].

[81] Transcript, 31 August 2023, PN1824.

[82] Ibid, PN1857.

[83] Transcript, 31 August 2023, PN1867 – 1875.

[84] Ibid, PN1888 – PN1895.

[85] [2023] FWC 1928.

[86] [2022] FWCFB 55, at [45].

[87] See (to name a few): Gakindi v Oncall Language Services Pty Ltd[2023] FWC 436; Stocks v Phoenix Source & Select Pty Ltd[2023] FWC 2060; Shields v Randstad Pty Ltd [2022] FWC 1660; O’Reilly v Hays Specialist Recruitment (Australia) Pty Ltd[2022] FWC 1002; Gibson v HVA Technical Services Pty Limited[2022] FWC 3056; Fullerton v Programmed Skilled Workforce Ltd[2018] FWC 4349.

[88] Ibid, PN1824.

[89] Transcript, 30 August 2023, PN675.

[90] PR765209.

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Citations

Brayden John Bristow v HVA Technical Services Pty Limited [2023] FWC 2036

Cases Citing This Decision

0

Cases Cited

9

Statutory Material Cited

0

Hrycenko v Hrycenko (by his legal representative Hycenko) [2022] FCAFC 152

Carla Trewin v S Choudhuri & a Shee t/as Ella Bache Sale [2023] FWC 1928

NSW Trains v Mr Todd James [2022] FWCFB 55