Brian Henry v FP Group Pty Ltd and Tooheys Pty Ltd

Brian Henry sought remedies for unfair dismissal against FP Group Pty Ltd and Tooheys Pty Ltd, with the Fair Work Commission at first instance. The dispute concerned jurisdictional objections, specifically applications for remedies that were filed 'out of time'. The core issue was determining the identity of the true employer under labour hire arrangements, and whether Henry was jointly employed or if there was a principal employer.

The court had to decide whether Henry's employment was governed by a labour hire arrangement, and if so, whether the labour hire company was the true employer. This involved examining the 'control' tests, which required objective evidence and an analysis of the contractual terms and intentions of the parties. The court considered the whole relationship between Henry, FP, and Tooheys to ascertain the true employer. The analysis revealed that the labour hire arrangement was not unusual, and FP, the labour hire company, was identified as the true employer. Consequently, the court found it unnecessary to address the 'out of time' applications and dismissed the applications against Tooheys. However, the applications against FP were remitted for further programming to address the substantive issues of unfair dismissal.

The final orders of the court were that the applications against Tooheys Pty Ltd were dismissed for lack of jurisdiction due to the true employer being FP Group Pty Ltd. The applications against FP Group Pty Ltd were remitted for further programming to address the merits of the unfair dismissal claims.