Dale Beazley v Visy Paper Pty Ltd trading as Visy Recycling

[2012] FWA 5136

[2012] FWA 5136

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dale Beazley
v
Visy Paper Pty Ltd trading as Visy Recycling
(U2012/4284)

COMMISSIONER SIMPSON BRISBANE, 18 OCTOBER 2012

Jurisdictional objection - Respondent not the Employer - Application dismissed

[1] On 23 January 2012 Mr Dale Beazley (“the Applicant”) made an application under Section 394 of the Fair Work Act 2009 for an unfair dismissal remedy. His alleged in his application that his employer was Visy Paper Pty Ltd trading as Visy Recycling (“the Respondent”).

[2] An unsuccessful conciliation was conducted on 21 February 2012. On 24 February the tribunal was contacted by a representative of Ranstad Pty Ltd (Ranstad) a labour hire company engaged by the Respondent, who advised that they employed the Applicant and not the Respondent. The Applicant was notified by correspondence from Fair Work Australia (FWA) on 21 March 2012 of this advice from Ranstad. The Applicant was advised in this correspondence if he agreed Ranstad was his correct employer he may apply to amend his application within 14 days.

[3] A Mention hearing was conducted before Commissioner Jones on Friday 27 April 2012 to confirm the correct name of the Employer. In the course of the mention hearing Ms Jennifer Tweed, a representative of Ranstad advised she could provide a copy of a contract of employment between the Applicant and Ranstad. The Commissioner directed that FWA be provided with a copy of the contract, and that it would be forwarded to the Applicant in order that he would have an opportunity to respond regarding that material.

[4] Correspondence from FWA was subsequently sent to the Applicant attaching a range of documentation provided by Ranstad, on Ranstad letterhead, including a document headed ‘contract of service terms and conditions - AUS’ , a candidate registration consent form, an information statement for work seekers, a medical questionnaire and OH&S Temporary Employee Induction DVD Assessment - Blue Collar. All of these documents were signed by the Applicant. The FWA correspondence asked that the Applicant review the documentation from Ranstad and advise whether he agreed that Ranstad was his employer.

[5] A File Note of 27 June 2012 made by a member of the FWA Unfair Dismissal Team records a telephone discussion between that FWA employee and the Applicant where it is said he advised he had received the correspondence from FWA but decided he would like to proceed against the Respondent not Ranstad as he believed he had served six months with the Respondent.

[6] On 26 July the matter was then listed for a Jurisdiction hearing for Monday 10 September on this same issue. The Respondent filed an outline of submissions and a witness statement of Alana Loy, Visy Recycling - Qld Fleet Manager. The statement describes her supervision of a contract between the Respondent and Ranstad for the provision of labour hire truck drivers to the Respondent to carry out driving duties, and that the Applicant was one of these truck drivers employed by Ranstad. Alana Loy states at no time has the Respondent employed the Applicant and that his rate of pay and other employment arrangements were the sole responsibility of Ranstad. This statement of Alana Loy also deals with correspondence of 15 November 2011 which I will discuss later.

[7] Alana Loy states that when the Respondent engages an employee it issues the employee a written contract of employment and it has not done so in the case of the Applicant.

[8] The Directions required the Applicant to submit his material by Friday 24 August 2012. These directions were not complied with. The matter was then listed for a Non Compliance hearing by telephone on Wednesday 12 September 2012. In the Non Compliance hearing it was claimed by the Applicant that the reason he had not complied with directions was that he had been approached by a person not known to him and told to stop what he was doing, which he interpreted as a threat regarding his pursuit of this application. The Applicant did not provide further particulars regarding this claim. It was agreed upon by both parties that the jurisdictional matter could be dealt with on the papers on the basis that the Applicant filed his material by close of business that day and the Respondent be given a further opportunity to file material in response before a determination was made. The Applicant filed a submission and witness statement that day and the Respondent filed a further statement from Alana Loy in response.

[9] The Applicant’s argument that he was an employee of the Respondent was based on his statement that the Respondents supervisors assigned his work and supervised him, and effectively controlled his work. He conceded in his statement that he had signed paperwork (referred to above) at the Ranstad office prior to commencing work on 29 March 2011.

[10] The Applicant also relied upon correspondence from Chris Coull a Fleet Controller at Visy dated 30 March 2011 to a representative of Queensland Corrective Services. It would appear the genesis of this correspondence was that it was a condition of a Probation Order regarding the Applicant that he provide written verification to Corrective Services regarding employment and further it was a condition of his Parole that he was not to leave the State of Queensland. The correspondence on Visy letterhead advises that his scheduled run required him to go to Tweed Heads (outside the State border) and the correspondence requested permission for this to occur. Chris Coull’s correspondence does not explicitly state that the Respondent is the Applicant’s employer but when read objectively could easily be interpreted that way.

[11] A further argument put by the Applicant as proof of an employment relationship with the Respondent was a Training Contract signed by Alana Loy on behalf of the Respondent, and also signed by the Applicant on 27 September 2011. The document is also signed on that date by a representative of MEGT Australia Pty Ltd (MEGT) which according to the form is an Australian Apprenticeships Centre. The document identifies Visy Paper Pty Ltd ATF Southern Paper Converters Trust as the Applicant’s employer. The document indicates the commencement date of the Apprenticeship/Traineeship was 15 July 2011. Also attached to the Applicant’s statement is another document signed by a representative of ‘Visy Recycling’ on 2 November 2011 which is an application to cancel the Apprenticeship/Traineeship contract. This document is date stamped as being received on 7 November by MEGT. There is no signature of the Applicant on the form consenting to the cancellation. There is also no further material before me regarding the circumstances of the cancellation.

[12] In response to this training documentation Alana Loy stated that the Respondent paid for all of Ranstad’s employees at that time to undertake training. She also said that although the Respondent paid for this training directly to the training provider, it did not transfer the employment of the Ranstad employees to the Respondent. Alana Loy says the forms which had to be used to register the training did not provide for this type of arrangement. This is why the documents refer to Visy even though all it was doing was paying for the training and the training was taking place as part of the placement with Ranstad.

[13] It is generally accepted that despite being subject to separate legislation for the purpose of training arrangements apprentices and trainees can ordinarily be regarded as employees. Even if it were that by Alana Loy and the Applicant entering a training contract that this had the effect of also creating an employment relationship between the Respondent and the Applicant (it was not signed until 27 September 2011 and purported to be cancelled four days later on 1 October 2011 according to the form) the most generous interpretation for the Applicant would be that this arrangement commenced to have effect from 15 July 2011 and was not cancelled as claimed by the employer because the Applicant did not consent.

[14] Even in those circumstances, as the Applicant was terminated on 9 January 2012 the relevant period for the purposes of that argument would not satisfy the minimum employment period required in order to bring an Unfair Dismissal application. On that basis jurisdiction would not exist in any event. For completeness however, despite the fact it appears clear from reading the Training Contract it was not appropriate for the Respondent to sign the Contract if it did not believe it was the relevant employer, the act of signing the Training Contract in this case did not of itself create an employment relationship between the Respondent and Applicant.

[15] The Applicant also relies on further correspondence dated 15 November 2011 from Alana Loy on the Respondents letterhead to Wynnum Parole and Corrections which says as follows:

“This is to confirm that Dale Beazley is currently employed with Visy Recycling on a Full-time basis as a Truck Driver.

If you require any further confirmation please give me a call on the below number.”

[16] Alana Loy said in her statement that the 15 November letter was in connection with the issue discussed above concerning the conditions of the Applicant’s parole concerning travel. She said it was her intention in writing the letter to assist the Applicant to continue to have his conditions of parole changed so he could enter New South Wales which was required in order to drive a particular route which was part of his duties. Alana Loy draws attention to the use of the word “with” and not “by” which she said was deliberate. Alana Loy conceded the letter was poorly drafted and I agree. Similarly to the letter of 30 March 2011, without the relationship between the Respondent and Ranstad being brought to the attention of the person the correspondence is directed to, it would naturally be assumed the Respondent was the Applicant’s employer.

[17] I can understand on the basis of some of the material before me that the Applicant as a lay person may have come to hold to the view that the Respondent was their employer. However despite clumsy wording in correspondence to Corrective Services, and the Respondent signing a training contract which they should not have, overall the material indicates the not uncommon arrangement of a labour hire agency as employer, hiring out an employee’s services to a host employer (the Respondent in this case) where the employee works at the hosts premises and is supervised by the hosts staff. No written employment contract has ever existed between the Respondent and the Applicant. There is clear evidence a written employment contract was entered into between Ranstad and the Applicant, and there is no clear evidence that contract was somehow superseded by a new oral contract between the Applicant and the Respondent. As it is my view the Respondent was not the employer I have no jurisdiction to hear the application and it must be dismissed. I will issue an order accordingly.

COMMISSIONER

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