Cody Myers-Raab v
[2022] FWC 835
| [2022] FWC 835 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Cody Myers-Raab
v
CoreStaff VIC Pty Ltd T/A CoreStaff
(U2022/2017)
| COMMISSIONER MIRABELLA | MELBOURNE, 12 APRIL 2022 |
Application for an unfair dismissal remedy.
This decision concerns an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) by Mr Cody Myers-Raab (the application). CoreStaff VIC Pty Ltd T/A CoreStaff (CoreStaff) has raised a jurisdictional objection to the application proceeding within the meaning of s.386 of the Act. CoreStaff contends that Mr Myers-Raab has not been dismissed.
Background
CoreStaff is a labour hire company.
Mr Myers-Raab was employed by CoreStaff on 19 May 2021 as a casual employee.
Mr Myers-Raab does not dispute that he signed and sighted his employment contract with CoreStaff. At the time of the alleged dismissal, Mr Myers-Raab was assigned to a host employer, Walkinshaw Automotive Group Pty Ltd (Walkinshaw).
Mr Warren Drew, Account Manager at CoreStaff, contacted Mr Myers-Raab by telephone on 14 February 2022, approximately three hours before his shift with Walkinshaw was due to begin. At the determinative conference conducted in the matter on 11 April 2022, Mr Myers-Raab said that during this conversation he was told that he was no longer employed through Walkinshaw.
He confirmed that he was not told that his employment with CoreStaff had ceased.
The following day, Mr Myers-Raab requested a separation certificate and filed the application with the Commission on 16 February 2022.
On 23 February 2022 Mr Ben Jensen, Human Resources Manager for CoreStaff, sent the following email to Mr Myers-Raab:
“Hi Cody
Further to our conversation this morning, here are the details of an alternative assignment that is available for you immediately.
As discussed, unfortunately we are unable to insist that Walkinshaw continue with your engagement and we’re unable to continue to pay you when an assignment ends.
Please let me know if this assignment is of interest. If so, you can start tomorrow.
Client: Barenbrug
Location: Dandenong South
Labouring, filling hoppers and handling bags of seeds (rye grass)
6:30-2:30pm - Monday to Thursday
6:30 - 12:30pm Friday’s
$27.15 per hour
Currently, you remain an active candidate and casual employee with CoreStaff, despite the Walkinshaw assignment ending.
I understand you have requested a separation certificate and we can send you one obviously, but will wait to hear from you as to whether you want to take the above assignment or any other assignment we may have available.
Regards”
Mr Myers-Raab responded as follows:
“Hi Ben
As stated I’m not very interested in employment under CoreStaff because of the way everything has been handled, any further communication can be under email, I will be continuing with my unfair dismissal application at this current time, thank you.”
Mr Jensen replied:
“Hi Cody
Thanks for your reply. If you do change your mind about another assignment, please let me know.
Regards
Ben Jensen”
At the determinative conference, Mr Jensen confirmed that Mr Myers-Raab remains an active candidate on CoreStaff’s database and that they are happy that he remains on the database if he would like to be considered for a future assignment.
Terms and conditions of employment
Mr Myers-Raab’s employment contract with CoreStaff provides as follows under the heading “On Hire terms”:
“You are employed as a casual on-hire employee of CoreStaff, which means that:
· you are employed by CoreStaff to perform work for CoreStaff’s Clients on Assignments;
· the amount and type of work you receive whilst on Assignment will be determined by the Client’s requirements for temporary labour services, and CoreStaff or the Client may therefore terminate an Assignment at any time at their discretion;
· your work on an Assignment is conditional upon you complying with all reasonable and lawful directions that CoreStaff or the Client gives you and you meeting all performance, behavioural, safety and conduct requirements set for you by CoreStaff or the Client;
· you are not entitled to ongoing work on any particular Assignment or upon the cessation of that Assignment directly with CoreStaff;
· the terms and conditions of any Assignment may differ from Assignment to Assignment and may be altered during the course of the Assignment;
· the end of an Assignment does not mean your casual employment has been terminated however you continue to have no guarantee of ongoing work and each Assignment continues to constitute a separate period of employment;
· at the cessation of an Assignment you are not entitled to any severance or termination payment; and
· you are at all times during an Assignment an employee of CoreStaff and are subject to CoreStaff’s control and direction and that of our clients.”
Jurisdictional objection
Section 386 of the Act provides:
“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.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement; and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”
CoreStaff draws a distinction between the end of an assignment and the termination of employment with CoreStaff. The employment contract states this very clearly:
“• you are not entitled to ongoing work on any particular Assignment or upon the cessation of that Assignment directly with CoreStaff”
Mr Myers-Raab confirmed that he was not told on 14 February 2022 or at any other time that his employment with CoreStaff had been terminated. Mr Myers-Raab says he believed that his employment was terminated because his assignment with Walkinshaw had ceased. He did not claim ignorance regarding his employment contract, and the terms of that contract are written in plain English and are unambiguous.
Mr Myers-Raab contends that he was dismissed. He says that when he was told that he would no longer be employed through Walkinshaw, he believed his employment had been terminated.
Mr Myers-Raab claims that he was told his time with Walkinshaw had ceased because, amongst other things, he had been accused incorrectly in his view of logging in late for work, taking 41 days off work and given multiple warnings. He says that he was targeted because he had complained about harassment and assault from a team leader and manager. CoreStaff contends that Mr Myers-Raab was not dismissed and disputes Mr Myers-Raab’s factual contentions regarding lateness in logging into work, that the days absent from work as provided by CoreStaff are incorrect and that he was harassed or assaulted.
The correspondence between the parties on 23 February 2022 clarifies any misunderstanding that Mr Myers-Raab had regarding his employment status with CoreStaff. He was offered an alternative assignment and when he rejected the new assignment, he was informed that if he changes his mind to communicate same to CoreStaff.
Mr Myers-Raab did not provide any substantive submissions regarding the jurisdictional objection. Subsequent to CoreStaff filing the Form F3 which outlined the jurisdictional objection, Mr Myers-Raab submitted print outs of timesheets, text messages (including his request for a separation certificate), time and date stamped notes he had written on his mobile telephone describing incidents in the workplace over January and February 2022 and a statutory declaration from Mr Sean Matthew Collins relating to the dispute of when shifts were to commence. This additional material appears to be relevant to the issue of whether the alleged dismissal was unfair, not whether there was a dismissal under the Act.
CoreStaff contends that it did not dismiss Mr Myers-Raab. They submit that they offered him an alternative assignment and that he remains “an active candidate” in their system. They deny initiating any termination and say that Mr Drew, a very experienced Labour Hire Account Manager, is aware of the company’s policies and procedures and that “[u]nder no circumstances would CoreStaff initiate the termination of employment without a written termination letter being provided to the employee.”[1]
They submit that their experience with staff includes many who conclude working at one assignment and go onto another employer but that they cannot insist that Walkinshaw provides work for a specific candidate, in this instance Mr Myers-Raab.[2]
Mr Myers-Raab had a contract with CoreStaff and was employed by them. He acknowledged that at no time was he informed that his employment with CoreStaff had ceased. The termination of Mr Myers-Raab’s assignment with Walkinshaw did not terminate his employment with CoreStaff.[3]
CoreStaff did not deny Mr Myers-Raab’s employment. He was offered an alternative assignment but declined it because he was “not very interested in employment under CoreStaff because of the way everything has been handled”.[4] In asking for a separation certificate, Mr Myers-Raab was making a unilateral subjective decision to treat his employment as being at an end.
Mr Myers-Raab’s application for an unfair dismissal remedy does not meet the jurisdictional requirements of the Act. That is, I find that his employment was not terminated as per s.386 of the Act.
The application is dismissed. An order to this effect is issued with the decision.
COMMISSIONER
Appearances:
The Applicant on his own behalf
Mr B. Jensen for the Respondent
Hearing details:
2022
Melbourne (video using Microsoft Teams)
11 April
Final written submissions:
5 April 2022 (Applicant)
29 March 2022, 8 April 2022 (Respondent)
[1] Exhibit R2.
[2] Exhibit R3.
[3] Arcadia v Accenture Australia[2008] AIRC 108, [6]-[7].
[4] Exhibit R2.
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