Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v AusTunnel Pty Ltd, SLC Snowy Hydro Joint Venture T/A Future Generation JV
[2022] FWC 1655
•1 AUGUST 2022
| [2022] FWC 1655 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
AusTunnel Pty Ltd, SLC Snowy Hydro Joint Venture T/A Future Generation JV
(C2021/5348, C2021/5349, C2021/5350)
| DEPUTY PRESIDENT CROSS | SYDNEY, 1 AUGUST 2022 |
Application for a general protections remedy – whether dismissal – applicants found to be dismissed.
On 3 September 2021, Mr Justin Milford, Mr Michael Bambagiotti and Mr Royce Godbee (the Applicants) made applications to the Fair Work Commission (the Commission) pursuant to section 365 of the Fair Work Act 2009 (Cth) (the Act) (the Applications), alleging that that adverse action involving dismissal had been taken against them by the First Respondent because they had protections described in s.340 of the Act. The adverse action was alleged to have been taken by Austunnel Pty Ltd (the First Respondent). The First Respondent, and Webuild S.p.A., Clough Projects Australia Pty Ltd and The Lane Construction Corporation, the participants in the SLC Snowy Hydro Joint Venture (ABN 45 576 105 405), trading as Future Generation Joint Venture (the Second Respondent), were alleged to “have each been knowingly concerned in the contravention by [each] other.” [1]
The First Respondent and the Second Respondent (collectively the Respondents), objected to the Applications filed on the basis that, as the the Respondents submitted, the Applicants were not dismissed from their employment with the First Respondent within the meaning of s.386(1) of the Act. Section 365 of the Act requires the Commission to determine a dispute about the fact of a dismissal prior to exercising powers conferred on it by sections 368 and/or 369. Section 386(1) of the Act relevantly provides that a person is dismissed only if the person's employment has been terminated on the employer's initiative.
The Applications allege various contraventions of the general protections contained in Pt 3-1 of the Act involving dismissal. The Commission has jurisdiction to entertain the Applications only if the Applicants have been dismissed (Coles Supply Chain Pty Ltd v Milford[2]).
The Respondents dispute the Applicants’ assertion that their employment terminated on one or both of the Respondents’ initiative. If the Respondents’ contention is correct, it follows that the Applicants do not have standing to bring the Applications under s.365 of the Act and the Commission therefore does not have jurisdiction either to deal with the disputes under ss.368 or 369 of the Act
Directions
On 16 December 2021, directions were issued for filing of submissions and other materials (the Directions). Those Directions were as follows:
1. Justin Millard, Michael Bambagiotti and Royce Godbee, (the Applicants) are directed to file with the Fair Work Commission, and serve on AusTunnel Pty Ltd and SLC Snowy Hydro Joint Venture (the Respondents), an outline of submissions, witness statements and other documentary material each Applicant intends to rely on in relation to the Jurisdictional Objection raised in this matter by 4pm on 13 January 2022.
2. The Respondents are directed to file with the Fair Work Commission, and serve on the Applicants, an outline of submissions, witness statements and other documentary material the Respondents intend to rely on in relation to the Jurisdictional Objections raised in this matter by 4pm on 3 February 2022.
3. The Applicants are directed to file with the Fair Work Commission, and serve on the Respondents, any reply material, that is, any witness statements and other documentary material in reply to the Respondents’ witness statements and documents by 4pm on 7 February 2022.
4. Any party that requests permission to be legally represented at the hearing is directed to file with the Fair Work Commission, and serve on the other party, a brief outline of submissions in support of its request by 4pm on 3 February 2022.
The submission dates for the Directions were amended, and complied with. In particular:
· On 13 January 2022, the Applicants filed an Outline of Submissions, a witness statement of Justin Millard dated 12 January 2022, a witness statement of Michael Bambagiotti dated 13 January 2022, and a witness statement of Royce Godbee dated 12 January 2022.
· On 8 February 2022, the Applicant filed reply witness statements of Mr Millard, Mr Bambagiotti and Godbee.
The matter was listed for Hearing on 9 February 2022. At the Hearing, all statements filed were received into evidence, and only Mr Roe and Ms Naidion were cross-examined, albeit briefly. In the absence of cross-examination it was not possible to determine disputed facts, particularly the details of how each Applicant was advised of their demobilisation. In that circumstance, with the onus of proof resting on the Applicants,[3] where the Applicants’ evidence was not challenged I have accepted that evidence for the purpose of dealing with the jurisdictional objections.
Background Facts
It is not in dispute that each of the Applicants were casual employees.
Each Applicant was engaged by the First Respondent pursuant to letters of engagement (the Contracts). Only the Contracts of Mr Millard and Mr Bambagotti were in evidence, however the Respondents appeared to accept in their submissions that consistent contractual provisions applied to all the Applicants. The Contracts provided:
Dear [name],
I am pleased to offer you ('the Employee') casual employment in the position of Electrician, Classification AWS, with Austunnel Pty Ltd ('the Employer') on the terms and conditions set out in this letter. Please consider this letter as your employment agreement. If the terms and conditions of this letter are acceptable to you, please return a signed copy to Marina Naidion (HR Coordinator) within seven (7) working days of the date of this letter.
1. Agreement
1.1 This contract operates between you and the Employer in terms of the Austunnel Pty Ltd Enterprise Agreement 2017.
2. Position
2.1 You will be engaged as a casual Electrician, Classification AWS, at the Snowy Hydro 2.0 Project as directed by the Employer.
2.2 Your engagement on the Snowy Hydro 2.0 Project is for the duration of your duties on the project until the performance of your duties is no longer required on the project.
2.3 As a casual employee, there is no guarantee of ongoing or regular work.
2.4 On each occasion that you work, the Employer may assign other duties to you, having regard to your skills, training and experience.
3. Terms and conditions of employment
3.1 Unless more generous provisions are provided in this letter or in the attached Schedule, the terms and conditions of your employment will be those set out in the Austunnel Pty Ltd Enterprise Agreement 2017 and applicable legislation. This includes, but is not limited to, the National Employment Standards in the Fair Work Act 2009.
3.2 Your employment may be terminated at any time by the Employer providing you with notice, to apply at the end of your current engagement.
3.3 The additional terms and conditions set out in the attached Schedule will also apply to your employment.
…
13. Entire agreement
13.1 The terms and conditions referred to in this letter constitute all of the terms and conditions of your employment and replace any prior understanding or agreement between you and the Employer.
13.2 The terms and conditions referred to in this letter may only be varied by a written agreement signed by both you and the Employer.
The Applicants each performed work for the First Respondent on a regular and systematic basis in accordance with a set roster. They had their transport to and from site, and accommodation, provided by the First Respondent.
Mr Millard had previously been engaged by the First Respondent from about November 2020, on the Cross River Rail tunnel project in Brisbane. He received a letter of appointment with materially similar terms to his Contract, except that at Clauses 1.1 and 2.1 it referred to the Cross River Rail Project. Mr Millard moved from the Cross River Rail Project to the Project after receiving an email from Jayson Bebek on 22 January 2021, in the following terms:
Hi Justin,
With the TBM [Tunnel Boring Machine] launches approaching for Cross River Rail I wanted to get in touch and see if you will have any interest in work on the Snowy Hydro project (if there is no additional work available for Austunnel at Gabba or other sites).
Austunnel is providing Electricians for the Snowy TBM and conveyor builds similarly to what we have done for Cross River Rail, however there are 3 TBMs (2 x HK and 1 x CREG) and larger diameter so assembly time is considerably longer. Currently the project does not employ any electricians for the TBMs/conveyors – they work for
Austunnel. We are looking at 3 to 6 months work with Austunnel with a good likelihood of signover to the project. The project has approx. 5 years to go and will need a lot of electricians.Under our contract the project has final say in which personnel are accepted for the available roles, however, we are putting priority on submitting CVs of our current and past employees.
Roles will be FIFO out of the closest hub (eg Syd, Bris, Melb). We expect the roster to move to a 14/7 from the 21/9 that they have previously had on the project.
Our policy is not to take people from our client projects until the project gives us formal notification/approval, so we would be submitting you to Snowy with availability listed as approximately beginning of March (so after TBM launch).
Can you please get back to me and let me know if you are interested? If you are can you also provide a few bullet points with what work you have done at Gabba, and also highlight any work on or around the TBM.
Mr Millard subsequently commenced work on the Project on 19 March 2021. Mr Bambagotti commenced with the First Respondent on the Project on 12 April 2021. Mr Godbee commenced with the First Respondent on the Project in April or May 2021.
On or around 12 August 2021, each of the Applicants were contacted by the First Respondent and informed that they were “demobilised” and/or “no longer required”. The decision to demobilise the Applicants from the Snowy Hydro 2.0 Project was made by the Second Respondent. The First Respondent had no part of the decision-making process. The Second Respondent reserved the right to demobilise personnel from the Snowy Hydro 2.0 Project.
Mr Millard’s evidence regarding what occurred on 12 August 2021, when he was returning to the Snowy 2.0 Hydro site (the Project) from a period of leave, was as follows:
On 12 August 2021, at 5:45pm, I received a voicemail message from Duke Howard which said words to the effect of:
“Hi Justin, can you please call me back?”
I knew who Mr Howard was, but I did not regularly deal with him. My understanding was that Mr Howard was an employee of AusTunnel based at the Snowy Hydro Project who managed administrative matters on behalf of AusTunnel in relation to AusTunnel employees.
At approximately 6:00pm on 12 August 2021, I returned Mr Howard’s call. Mr Howard said to me words to the effect of:
“I do not need to tell you why, but the client has informed us that you are no longer needed on the project.”
I then said words to the effect of:
“What? Why? What is the reason for that?”
Mr Howard then said words to the effect of:
“I do not have to give you reasons. They don’t need to give you reasons. You are no longer needed on the project, and that is it.”
The conversation with Mr Howard then ended.
Immediately following my call with Mr Howard, I called Mr Rosetta. I said to Rosetta words to the effect of:
“Howard has just called me and informed me I am no longer required on the project.”
Mr Rosetta said words to the effect of:
“What? Really? That’s news to me, I had no idea of that. I will make some phone calls and find out what is going on.”
The conversation with Mr Rosetta then ended.
Later on 12 August 2021, Mr Rosetta called me and said words to the effect of:
“I have just been told by the head of HR that they say you do not have the skillset to move forward on the project and have not passed the new employment interview.”
This surprised me, because I had not been made aware of or otherwise interviewed for any new position.
Mr Rosetta also said words to the effect of:
“This is nonsense. I told the HR person that you have not been interviewed for a position.”
I then said to Mr Rosetta words to the effect of: “That’s right. I haven’t been interviewed.”
Given that Mr Howard had informed me that I was no longer required on the Snowy Hydro Project, I did not board my flight to Canberra on 13 August 2021. I understood that my employment had been terminated.
The evidence of Mr Godbee regarding what occurred on 12 August 2021, was as follows:
In around mid-August 2021, while I was on my week off, I received a call early one morning from Duke Howard, who worked in a human resources role on site for Austunnel. I was still half asleep when Duke called. Duke said to me words to the effect of:
Duke: “Your name is on the demobilisation list along with six others. You’ve been marked for demobilisation”
Royce: “What do you mean? Why is this happening?”
Duke: “I don’t have any other information for you, just a list of names and your name is on it.”
Royce: ‘Who gave the order for demobilisation? Who else’s is being demobilised?
Can you give me the names of the others?”Duke “No, that’s all the information I have for you.”
Royce: “Okay. Well I’m going to ring my supervisor to get more information.”
This was a shock me. I had no prior indication that I would be let go, and nothing had happened that would make me think I could be let go.
…..
One or two days after being let go, I spoke with Dale Bradbury (Superintendent at Austunnel) and Brent Flood (Leading Hand/Supervisor at Austunnel).
In the call with Dale Bradbury, he said to me words to the effect of:
“The reason you were let go is that you scored low on the employee evaluation forms.”
Dale said to me that the rating scale on the forms was one to three, with a score of one being a good score, and three being a bad score. Dale told me that he and Nick each gave me a score of three (bad), while Dave Rosetta gave me a score of one (good). Nick is an electrical superintendent at the Project. I do not know his surname. I have only spoken with Nick once or twice and had very little interaction with him on the Project.
Dale said to me words to the effect that the reason he gave me a score of three on the form was because:
(a) He had received negative feedback about me;
(b) I didn’t complete tasks on time;
(c) I was hard to get along with; and
(d) I was disruptive and aggressive to other workers.
I then said to Dale words to the effect of:
“Look, I am completely taken aback by this, I have never been given a warnings by you or any of my supervisors about any of this, or had any issues raised with me about how I’m performing tasks”.
Dale then said to me words to the effect of:
“I don’t have to give you a reason, you’re casual. If we’re not happy with you, we don’t need to give you warnings or feedback”.
Mr Bambagiotti’s evidence was that he was contacted by Mr Howard and advised as follows:
“You are being demobilised.”
I said to Mr Howard words to the effect of:
“What? What do you mean?”
After I said this, the phone cut out and the phone call ended. I then engaged in a text
exchange with Mr Howard. That exchange was as follows:HOWARD: I will give you a call in the morning.
No serviceME: Have I done something wrong
HOWARD: No mate.”
Mr Howard did not specifically dispute the above three recollections of the Applicants, and as noted above I have proceeded on the basis of the Applicants’ evidence for the purpose of determining the jurisdictional objection. For completeness, however, I note that Mr Howard’s evidence in relation to each Applicant was that he had the following interactions:
“Justin Millard
On 12 August 2021, I notified Mr Justin Millard that he was no longer required on the project at Snowy Hydro 2.0 Lobs Hole. Mr Millard said to me words to the effect of:
“Why I am being demobilised?”
In response, I said words to the effect of:
“I don’t have that information, sorry.”
Royce Godbee
On 12 August 2021, I telephoned Royce Godbee to give him the news that the FGJV would be demobilising him from the project. I said words to the effect of:
“There was a list of different employees sent out and your name was on that list as an Austunnel employee to demobilise.”
Royce sounded shocked and confused but I didn’t have any other information that could assist him, so I said to him words to the effect of:
“You’ll need to contact the FGJV IR/HR department. I’m purely passing on the message.”
Michael Bambagiotti
On 12 August 2021, I telephoned Mr Michael Bambagiotti to give him the news that the FGJV would be demobilising him from the project. I relayed to him the message that he’d been demobilised from the project but shortly after the phone service cut out. I then sent him a text saying:
“I’ll call in the morning.”
In the morning of 13 August 2021, I called Michael back to continue our conversation and confirm the demobilisation conversation the previous day. I said words to the effect of:
“If you want any more information surrounding the matter, contact the IR/HR Department.”
Michael wanted to know if he had done anything wrong and explained to me that he was a good worker. I said to him words to the effect of:
“You’re probably a good bloke and a good worker - just from observations I have made during my short time on the project - but I am no electrician, and I am purely passing on the message from the FGJV IR Team that have made the decision to demobilise you. Call Austunnel or the FGJV IR/HR department if you have any issues around the demobilisation.”
I don’t recall the details of who had sent the email about the demobilisation but I recall saying to Michael words to the effect of:
“Amy Hodges works in FGJV HR, she may have been involved in the process.”
The Applicants were among six employees demobilised on 12 August 2021 from the Snowy Hydro 2.0 Project. Two of the employees demobilised with the Applicants have been remobilised by the First Respondent.
The Applicants’ attempts to obtain alternative work or employment with the First Respondent have been unsuccessful. No offers of other work or employment were made and the First Respondent made no further attempts to contact the Applicants.
Any personal property the Applicants had left at their accommodation at the Snowy Hydro 2.0 site was returned to them.
Mr Godbee resigned on about 31 August 2021, as he needed to get a separation certificate. As he resigned, he received payment of accrued rostered days off (RDO’s). Mr Millard and Mr Bambagiotti continue to have accrued RDO’s with the First Respondent.
Cross-examination of Mr Roe and Ms Naidion
As noted above, only Mr Roe and Ms Naidion were cross-examined at the Hearing. Relevant parts of their evidence were as follows:
(a) Mr Roe[4]
You would accept there have been no attempts by you to contact these members, these three employees, to discuss redeployment?‑‑‑That's not true. I spoke to Justin Millard to inform him that there were no available opportunities.
There was no discussion by you then about any other opportunities, was there, it was just to tell him there was nothing available?‑‑‑Correct, in that conversation.
It's true to say that since these employees were demobilised in August last year, Mr Roe, that there would have been opportunities that came up within the business in that period?‑‑‑Not necessarily, no. Electricians are a minority among our trade staff.
Is it your evidence that there have been no vacancies for electricians in the six months since August?‑‑‑No, that's not true, there have been vacancies.
Were these three employees considered for those vacancies?‑‑‑I'm not sure. I was not involved in the process of selecting individuals for those vacancies, other than three positions in Sydney.
You are not aware of any of these three employees being considered for or contacted about any specific vacancies since the demobilisation, are you?‑‑‑I'm not sure what efforts other individuals within the business have made.
Your view, Mr Roe, is that these three employees remain employed by AusTunnel today?‑‑‑Correct.
Do I take it therefore that your view is they remain employed by AusTunnel indefinitely?‑‑‑Could you rephrase that? I'm not too sure how to answer that.
Is it your position that these people remain employed by AusTunnel for ever unless they resign?‑‑‑Correct.
(b) Ms Naidion
In fact, you are not aware of any attempts by anyone at AusTunnel to contact these three employees to discuss redeployment, are you?‑‑‑I can't say that, I don't know.
And this is in circumstances where it's your view that these three people remain employed?‑‑‑Yes.
Do I take it that it's your view that these three people will remain employed by AusTunnel indefinitely unless they resign?‑‑‑Correct.
Thank you. In relation to Mr Godbey, you say, at paragraph 25, that you did not advise him to resign?‑‑‑Correct.
What you said to him was that if he wanted a separation certificate and have his RDOs paid out, he would have to resign?‑‑‑I do not recall me saying those specific words.
Would you accept that the only way Mr Godbee could obtain a separation certificate and have his accrued RDOs paid was to resign?‑‑‑He would have request the certificate specifically. That would then end up in him being no longer employed by us.
And when you say he has to request a certificate, that means he has to resign; is that right?‑‑‑That would mean him leaving the position, but he didn't have to specifically go through the resignation process to request that certificate. So, he asked for it, specifically contacted us to ask for it, and that was the process.
Okay. Mr Millard and Mr Bambagiotti have never been provided their separation certificates or been paid their accrued RDOs; do you accept that?‑‑‑I have not - I don't know about the RDOs and I don't have any knowledge of them requesting a separation certificate, no.[5]
…
MR KENNEDY: Ms Naidion, is it correct to say that the only way those two gentlemen could obtain payment of their RDO entitlements is for them to resign?‑‑‑Based on my knowledge of the processes that we follow, they would have to ask for the separation certificate and payment of their RDOs as a request for them to separate.
They would have to do what Mr Godbey did, which was to resign his employment; is that right?‑‑‑He would - they would have to put that request to us to separate from the employment with AusTunnel and get their RDOs paid out.
Otherwise, they will remain employed by AusTunnel indefinitely and not have their entitlements paid out; that's right, isn't it?‑‑‑They would be employed by AusTunnel. In terms of entitlements, I don't - I don't do these functions as part of my role, so all the RDO and payment questions would normally be addressed by the financing team manager.[6]
…
Well, when the decision was made to demobilise the three applicants, the power to do so - I'm trying to ascertain from the contract the source of the power to act as you did?‑‑‑My understanding is that we are under an obligation to demobilise a worker upon the request of the client, which is in this case - was to demobilise them from the Snowy Hydro Project, and no written notices were given to any of them at that time, if that's what you're referring to.
No, I'm trying to understand where I can see in the letter of engagement the power that was relied upon in the demobilisation and I'm seeking your assistance. Are you able to assist or not?‑‑‑No.[7]
Submissions
The parties relied upon written submissions, which were supplemented after the delivery of the decision of the Full Bench of the Commission in NSW Trains v Todd James,[8] (NSW Trains).
(a) Applicants’ Submissions
The term “dismissed”, as it appears in s.365 of the Act, is defined in s.386(1). The consideration of whether there has been a termination at the initiative of the employer is to be conducted by reference to the termination of the employment relationship.[9]
The Applicants submitted that the relevant act or omission of the employer must be intended to bring the employment relationship to an end, or be such that the probable result of the act or omission is that the employment will be brought to an end.[10] The questions are objective ones and the subjective perceptions or aims of the employer are irrelevant.
In the Applications, the action that terminated the employment was the telephone call to each applicant telling them they had been ‘demobilised’ and/or were ‘no longer required.’ Had the employer not taken that action, then the employment relationships would have continued. The Applicants were otherwise ready, willing and able to continue to perform work.
The Applicants further noted evidence of each Applicant about what happened post termination only further reinforced the conclusion that the employment relationships terminated on the First Respondent’s initiative. There was no contact from the First Respondent, and attempts by the Applicants to contact the First Respondent to obtain other work or employment were either ignored or rejected. The Applicants’ income ceased, there was no further work offered, and any property was returned by the First Respondent. The employment relationships had, for all intents and purposes, ended.
Clauses 2.1 and 2.2 of the Contract clearly confined the employment relationship to each Applicants’ duties at the Project. Those clauses did not provide for employment on a project by project basis and there is no conduct at all by the First Respondent which might demonstrate an intention to continue the relationship.
The Applicants finally submitted that no statement by the Full Bench in NSW Trains disturbed or affected the “bedrock principle” that an employee is dismissed if their employment relationship is terminated at the employer’s initiative, which is necessarily a question of fact.
(b) First Respondent’s Submissions
The First Respondent submitted that the terms of the Contracts did not provide that the Applicants’ employment relationships with the First Respondent came to an end at the cessation of the Applicants’ engagement on the project. Notably, the contracts merely prescribed that the Applicants’ engagement on the Snowy Hydro 2.0 Project shall be until the performance of their duties is no longer required on the project.
The decision to demobilise the Applicants from the Project was made by the Second Respondent. The First Respondent had no part of the decision-making process. The Second Respondent reserved the right to demobilise personnel from the Project. The First Respondent was contractually obliged to comply with a direction to demobilise personnel employed by the First Respondent from the project.
In response, the First Respondent submitted the Applicants’ reading of the express terms of the Contracts was flawed. The intention of the clause 2.1 is to identify the project on which the terms and conditions of the engagement will apply, not to limit the employment relationship to a particular project. Were the latter interpretation intended, the offending term would more appropriately read “for the Snowy Hydro 2.0 Project.”
Further, clause 2.2 which provides “Your engagement on the Snowy Hydro 2.0 Project is for the duration of your duties on the project until the performance of your duties is no longer required on the project,” is intended to define the term of the Applicants’ engagement on the Project as limited to the period during which the Applicants’ duties are required on the project. The clause is not intended to define the employment relationship as being limited to the Project or the duration of the Project. Were the employment relationship limited to the Project and intended to terminate upon cessation of the duties on the Project, the phrase “on the Snowy Hydro 2.0 Project” would be superfluous and ought to have been omitted.
In the alternative, if the clauses are ambiguous or capable of more than one meaning, the surrounding circumstances and commercial purpose of the contract should inform the Contracts’ interpretation. The purpose of the Contract is to achieve commercial convenience for the First Respondent’s operations, being the supply of skilled labour, as required, to various projects.
Regarding NSW Trains,[11] the First Respondent adopted the submission of the Second Respondent below, emphasised the casual nature of the Contracts, and submitted the Contracts terminated on the completion of specified tasks.
(c) Second Respondent’s Submissions
The Second Respondent submitted the Applicants cannot have been "dismissed" at the initiative of the First Respondent when they were demobilised from the Project as there was no dismissal at all, because the Applicants remained employed. In that regard, the Second Respondent understands that the Applicants have not been expressly advised in writing of any termination.
The terminations were not due to some act of the First Respondent, but rather the effluxion of the term of engagement as a casual employee. A failure by the First Respondent to offer any new contract after the effluxion of the relevant previous contract had come to an end, does not by itself constitute termination at the initiative of the employer. There was no act of the First Respondent that could be said, having regard to all of the circumstances, to have directly and consequentially resulted in the termination of the employment of the Applicants. Rather, the ending of the engagement of casual employment in an entirely orthodox way due to their demobilisation from the Project.
Regarding NSW Trains, the Second Respondent acknowledged a majority of the Full Bench determined that the term "dismissed" within s.386(1) meant termination of either the "employment relationship", the "employment contract" or both.[12]
The two limbs of s.386(1) exclusively define the circumstances which give rise to a person being "dismissed" by an employer for the purposes of Part 3-2 of the Act.[13]
However, the Second Respondent submitted that in the context of a general protections application under Part 3-1, while the meaning of "dismissed" in s.365(a) is 'picked up' from s.386 by virtue of s.12, it does not follow that this term is to be construed, for the purposes of an application under Part 3-1, as being imbued with other notions concerning the scope of the unfair dismissal regime in Part 3-2 (and the extension of that regime to casuals engaged on a "regular and systematic basis" under sections 382(a) and 384(2)).[14] The Second Respondent emphasized the casual nature of the Contracts.
Consideration
(a) Terms and Conditions of Employment
There is no reason to regard the Contracts as other than true, reliable and realistic statements of the rights and obligations to which the parties agreed to bind themselves, and to not apply the terms of those documents to the present cases.[15] It is therefore not possible to aver to subsequent conduct of the parties.
The express terms of clauses 2.1 and 2.2 of the Contract specifically provide for employment at the Snowy Hydro 2.0 Project. Clause 2.2 itself provides three times that the engagement and duties are “on the project”. Contrary to the First Respondent’s submission, the Contracts are limited to that location, as Mr Millard’s previous contract was limited to the Cross River Rail tunnel project in Brisbane.
Clause 3.2, provides that the employment could be terminated at any time with notice, to apply at the end of the (then) current engagement. The Contracts and the Agreement notably do not provide for employment on an assignment-by-assignment basis and nor do they use the word ‘demobilisation.’
While the Applicants each performed work for the First Respondent on a regular and systematic basis in accordance with a set roster, and had their transport to and from site, and accommodation, provided, the provision of such rosters did not form a contractual promise that any Applicant would be entitled or required to work all the shifts listed.[16]
(b) Dismissal
Section 386 exclusively defines the circumstances which give rise to a person being “dismissed” by an employer for the purposes of Part 3-2 Unfair Dismissals of the Act. “Dismissed” for the purposes of the Act more generally is defined in s.12 by reference to s.386. The provisions of s.386 have been applied by courts in relation to s.365 General Protections matters.
In NSW Trains, the majority found that “the expression ‘employment … has been terminated’ in s.386(1)(a) means termination of the employment relationship and/or termination of the contract of employment.”[17] I do not accept the Respondents’ submissions that the conclusion of the Full Bench is limited in application to Part 3-2 of the Act, and see it as equally applicable to Part 3-1. In that regard I note the recent consideration of NSW Trains by a Full Bench of the Commission in determining a question of dismissal in a matter under Part 3-1 of the Act.[18]
The Full Bench in Navitas,[19] comprehensively considered the operation of s.386(1). That decision dealt fundamentally with the notion of fixed or outer-limit contracts, and while there is a final brief submission from the First Respondent in this matter that the Contracts terminated on completion of a specified task,[20] that submission must fail in light of the decision of the Full Bench in Dale v Hatch Pty Ltd,[21] where it observed:
“We do not consider that the employment “task” of an employee can be defined simply by reference to the currency of a commercial labour hire arrangement between the employer and a client without doing violence to the ordinary meaning of the word. Nor do we consider that a task is something which can be regarded as completed for the purpose of s.386(2)(a) when a third party client decides it does not want the employee of the employer to perform the relevant work anymore. A “task”, properly understood, is one which is completed when the employee finishes the work involved in it.”
However, Navitas provides important analysis of the operation of s.386(1) more generally. The Full Bench observed as follows with respect to the inclusion of casual employees within the scope of the unfair dismissal jurisdiction:[22]
“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).” (Footnote omitted)
The Full Bench then summarised their approach as follows:[23]
“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…”
(footnotes omitted)
A recent Full Bench found, in considering the impact of NSW Trains on a matter involving whether a casual employee had been dismissed for the purposes of his general protections application, that:[24]
“The reference to the termination of the employment relationship in Navitas must now be considered in light of the subsequent Full Bench decision in NSW Trains v James which held, in effect, 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. That is, at least in the context of demotion matters, Navitas should be understood as meaning that the termination of a contract will not necessarily lead to a dismissal where the persisting employment relationship remains on foot and largely unchanged, not that contract termination is irrelevant.
For completeness, we observe that an earlier Full Bench, when considering the application of the minimum employment period established by s.384 of the Act to casual employment, observed as follows:
“[10] As a matter of the common law of employment, and in the absence of an agreement to the contrary, each occasion that a casual employee works is viewed as a separate engagement pursuant to a separate contract of employment. Casual employees may be engaged from week to week, day to day, shift to shift, hour to hour or for any other agreed short period. In this sense no casual employee has a continuous period of employment beyond any single engagement. Moreover, it is common for a casual employee to transition between a period in which their engagements with a particular employer are intermittent and a period in which their engagements are regular and systematic and vice versa. It is against that background that s.384 must be construed.
[11] The criteria in s.384(2)(a) make it clear that s.384 does not proceed on the basis that a casual employee’s period of employment for the purposes of the unfair dismissal remedy starts and ends with each engagement as understood in the common law of employment.”
We emphasise that the notion of a minimum employment period is not relevant to this matter. It is the concept of casual employment and the connection to the employment relationship and contracts of employment that arises in the context of the Appellant’s central contention.”
(footnotes omitted)
On or around 12 August 2021, each of the Applicants were contacted and informed that they were ‘demobilised’ and/or ‘no longer required’. Mr Millard was advised that he did not have the skillset to move forward on the Project and had not passed a new employment interview, even though no such interview had occurred. Mr Godbee was advised that he did not “score well” on employee evaluation forms, though in one of three such forms he scored the highest mark. Mr Bambagiotti did not receive detail as to why he was demobilised.
After the demobilisations, the First Respondent made no further attempts to contact the Applicants, and any personal property the Applicants had left at the accommodation was returned to them.
Conclusion
On the particular facts of the matters the subject of the Applications,[25] as the Contracts were specifically for engagement “on the Project”, I find that each of the Applicants were dismissed from their employment on the Project, and their Contracts were terminated by the First Respondent in accordance with Clause 3.2 of the Contract, on 12 August 2021.
On the available evidence it can safely be concluded that there were no further prospects of the Applicants being engaged on the Project. Decisions had been made for their demobilisation from the Project, with clear reasons for alleged unsuitability being given to at least Mr Millard and Mr Godbee. The return of personal property to the Applicants would have dispelled any doubt as to dismissal.
While the First Respondent seems to accept that the Applicants’ engagement on the Project ceased, it submits that the Applicants’ employment relationship with the First Respondent continued with the intention being that new engagements would be offered to the Applicants if and/or when other suitable work could be sourced. I reject that submission because it is inconsistent with the express terms of the Contracts that provide for the employment to be confined to the Project, and note that nonetheless there was no acceptable evidence of such attempts to provide new engagements. There was nothing in the Contracts, the Agreement, or the First Respondent’s conduct, which would demonstrate that the employment relationship was somehow ongoing.
I am satisfied that the Applicants were dismissed by the First Respondent within the meaning of s.386(1)(a) of the Fair Work Act.
For present purposes and as a result of my determination, this matter will be further allocated and a determination made by a member of the Commission as to whether a certificate under section s.368 should be issued in this matter.
DEPUTY PRESIDENT
Appearances:
Mr J Kennedy, solicitor for the Applicant.
Mr T O’Brien, counsel for the first Respondent.
Mr T Sebbens, solicitor for the second Respondent.
Hearing details:
2021.
February 9
Sydney (via videoconference.
Final written submissions:
11 May 2022.
[1] Form F3, Question 3.3, at [4].
[2] [2020] FCAFC 152 at [74]-[75].
[3] Kool v Adecco Industrial Pty Ltd [2016] FWC 925.
[4] Transcript PN 120 to 128.
[5] Transcript PN 179 to 186.
[6] Transcript PN 191 to 197.
[7] Transcript PN 213 and 214.
[8] [2022 FWC 55.
[9] Khayam v Navitas English Pty Ltd t/a Navitas English[2017] FWCFB 5162 at [50] and [115].
[10] P. O’Meara v Stanley Works Pty Ltd PR973462, at [23].
[11] [2022] FWCFB 55.
[12] NSW Trains at [45].
[13] Ibid at [32].
[14] See Khayam v Navitas English Pty Ltd (Navitas) [2017] FWCFB 5162 at [70].
[15] WorkPac Pty Ltd v Rossato (Rossato) [2012] HCA 23; (2021) 309 IR 89; CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1, at [18], [43] to [47], and [59].
[16] Rossato at [69].
[17] [2022] FWCFB 55, at [45].
[18] Varichak v COG Regional Team Pty Ltd [2022] FWCFB 37, at [33].
[19] [2017] FWCFB 5162 at [75].
[20] Submissions of the First Respondent regarding NSW Trains v James, at [17] and [20].
[21] [2016] FWCFB 922, at [15]; see also [25].
[22] Navitas at [71].
[23] Navitas at [75].
[24] Varichak v COG Regional Team Pty Ltd [2022] FWCFB 37, at [33] to [35].
[25] See by way of contrast Patterson v NX Blue Pty Ltd[2022] FWC 1590, involving as it did an alleged dismissal from the Project on the same day as the Applicants.
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