David Howarth v ResourceCo Pty Ltd - [2023] FWC 1771

[2023] FWC 1771

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

David Howarth
v

ResourceCo Pty Ltd

(U2023/4570)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 16 AUGUST 2023

Application for an unfair dismissal remedy-dispute as to whether minimum employment period completed-transfer of employment considered-jurisdictional objection upheld and application dismissed.

On 25 May 2023, Mr David Howarth made an application to the Fair Work Commission for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent to Mr Howarth’s unfair dismissal application is ResourceCo Material Solutions Pty Ltd, which trades as ResourceCo Pty Ltd (ResourceCo). Mr Howarth contends he began working for ResourceCo on 1 August 2022 and that he was dismissed on 22 May 2023, a period just short of 10 months.

ResourceCo filed a Form F3 – Employer Response to application for an Unfair Dismissal Remedy (Form F3) in response, in which it detailed that Mr Howarth commenced employment on 6 March 2023, was notified of his dismissal on 22 May 2023 and at that time, it had 71 employees. ResourceCo has thereby raised the jurisdictional objection that Mr Howarth did not serve the applicable minimum employment period of 6 months and is therefore not a person who is protected from unfair dismissal in accordance with s.382 of the Act.

On 27 June 2023, the matter was allocated to me for determination of the jurisdictional objection and I issued Directions for the filing of material on 3 July 2023. Both parties filed and served material in response and I conducted a Determinative Conference via Microsoft Teams on 28 July 2023. Mr Howarth appeared and gave evidence, also calling Mr Lance Scott, Recruitment Specialist/General Manager of 1800 Drivers as a witness in support. Ms Carly Brown, National HR Manager, appeared and gave evidence for ResourceCo.

Factual Background

Both parties contend Mr Howarth was notified of his dismissal on 22 May 2023. ResourceCo submitted that Mr Howarth was dismissed as a result of an unsuccessful probation period. The ‘Termination of employment’ letter dated 22 May 2023 asserted that Mr Howarth’s probation period was “due to end on 7 September 2023” and then stated:

“We confirm that we have decided not to continue your employment beyond your probationary period. As a result, your employment will end today, 22 May 2023.

You will receive one week payment in lieu of notice as well as any accrued entitlements.”

Mr Howarth said he was an employee of 1800Drivers during the period from 1 August 2022 until 6 March 2023 pursuant to an oral agreement. He said his understanding was that the period of time he served with 1800Drivers was a probationary period and once he had undertaken this period with 1800Drivers and if ResourceCo was happy with his work, he would be transferred to ResourceCo as a full-time employee.

Mr Howarth said that during the period from 1 August 2022 until 6 March 2023, he was paid an hourly rate by 1800Drivers as a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading David Howarth v ResourceCo Pty Ltd

Details

AGLC: David Howarth v ResourceCo Pty Ltd [2023] FWC 1771
Case: [2023] FWC 1771
Decision Date: 16 AUGUST 2023

CaseChat Overview and Summary

David Howarth lodged an application with the Fair Work Commission for an unfair dismissal remedy under s.394 of the Fair Work Act 2009, asserting that he had been dismissed by ResourceCo Pty Ltd on 22 May 2023 after a probationary period. ResourceCo objected to the jurisdiction of the Fair Work Commission on the basis that Mr Howarth had not completed the applicable minimum employment period of 6 months. The Commission was required to determine whether Mr Howarth’s employment with 1800Drivers could be counted as service with ResourceCo for the purposes of establishing the minimum employment period.

The key legal issues were whether the definition of "service" in s.22 of the Act included Mr Howarth’s period of employment with 1800Drivers, and if so, whether there was a "transfer of employment" from 1800Drivers to ResourceCo pursuant to s.22(7) of the Act. This hinged on whether there had been a "transfer of business" between 1800Drivers and ResourceCo within the meaning of s.311 of the Act.

The Commission concluded that while Mr Howarth’s employment with 1800Drivers met the first three preconditions for a transfer of business, there was no connection between 1800Drivers and ResourceCo as required by s.311(1)(d) of the Act. The nature of the relationship between ResourceCo and 1800Drivers was that of an employer engaging supplementary labour from a specialist recruitment firm, rather than ResourceCo outsourcing its operational work. As such, there was no "transfer of business" and no "transfer of employment" for the purposes of s.22(7) of the Act. Consequently, Mr Howarth’s period of service with 1800Drivers did not count as service with ResourceCo and he had not completed the applicable minimum employment period of 6 months. The Commission dismissed Mr Howarth’s application for lack of jurisdiction.

Orders