Dillon Stocks v Phoenix Source & Select Pty Ltd
[2023] FWC 2060
•18 AUGUST 2023
| [2023] FWC 2060 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Dillon Stocks
v
Phoenix Source & Select Pty Ltd
(C2023/2087)
| DEPUTY PRESIDENT O’NEILL | MELBOURNE, 18 AUGUST 2023 |
Application to deal with contraventions involving dismissal - jurisdictional objection - whether applicant was dismissed – casual employee in labour hire – no dismissal.
Mr Dillon Stocks (the Applicant) has made a general protections application involving dismissal under s.365 of the Fair Work Act 2009 (Cth) (the Act). Phoenix Source and Select Pty Ltd (the Respondent) has raised a jurisdictional objection that the Applicant was not dismissed. This decision concerns whether Mr Stocks was dismissed by the Respondent.
Pursuant to directions issued, the Respondent filed statutory declarations of Ms Papastamatis and Ms Brien, together with an outline of submissions and supporting documentation. The Applicant did not file any witness or documentary evidence or submissions.
The matter was dealt with at a hearing on 11 August 2023, at which Mr Stocks represented himself and gave evidence. Ms Papastamatis, Managing Director and Ms Rachel Brien, Payroll Manager, gave evidence for the Respondent.
For the reasons below, I have found that the Applicant was not dismissed.
Factual findings and Submissions
The Applicant commenced employment with the Respondent as a casual dockhand on 14 November 2022. He says that he was promoted to a truck washing position in January 2023, although the Respondent disputes this and says that the Applicant was provided training for a truck washing role which was a position at the same level.
The Respondent is a labour hire business, and the Applicant was assigned to work at one of its clients, Direct Freight Express, from the commencement of his employment. The Applicant’s application for registration with the Respondent specified that the employment is on an assignment basis, with each assignment representing a distinct period of employment on a casual basis.[1]
On 16 March 2023, the Applicant was rostered to undertake truck washing duties at Direct Freight, commencing at 05.00am. At 06.11am the Applicant notified the Respondent that he needed some time off from work. This arose because the Applicant received highly distressing news and his mental health was deteriorating as a result. The notification was made via an application “ConnecTeam” which employees use to record their time and attendance and to accept rostered shifts. The message was “Will be calling at some point to explain the reasons for not being able to come into work for legitimate reasons relating to a crime that was committed towards myself with my partner, the court case is coming up in regards to this and I just need tome time to deal with this if whoever needs to know understand the situation as I still would like to return to work. I CAN provide documents to prove what I am saying is true.”
In his absence, Direct Freight made arrangements with a different labour hire supplier to meet its needs.
The Applicant had another telephone call with his regular contact officer at Phoenix Source & Select, Michelle Hopkins, in which she asked him for a ‘rough idea’ of when he would be able to return to work. The Applicant said that he was hoping it would be around 16 April 2023. It is not clear on what date this conversation took place.
The Respondent’s telephone records show that on 23 March 2023 at 10.04am, Ms Hopkins left a voicemail message lasting around 30 seconds advising the Applicant that Direct Freight’s requirements had changed. The Applicant provided an audio recording of this message which reveals the contents as:
“Hey Dillon, it’s Michelle here from Phoenix. We’ve heard the site does not want you back because you have not been going - I know the reason but they don’t care. I’m very sorry about that – but if you need to talk just give me a call.”
The Applicant interpreted this voice message, advising that his assignment at Direct Freight had ended, as notice that his employment with the Respondent had been terminated. In his application, the Applicant identified the dismissal as having taken effect on or around 9 April 2023, being the date he thought the above message was sent. However, at the hearing the Applicant did not dispute the accuracy of the records and that the message had, in fact, been left on 23 March 2023.
The Applicant’s mother also works for the Respondent, and the above voice message was left on her phone, which she then conveyed to the Applicant. The Respondent’s explanation for this, is that both the Applicant and his mother had provided the same telephone contact number, and that the call had been made to the Applicant. However, that is disputed by the Applicant. In either case, it is not disputed that the Applicant received the message.
After leaving the voicemail message, Ms Hopkins entered a note on the Respondent’s main CRM system ‘JobAdder’ that “Dillon is working through personal issues and will call to advise when he is ready to return to work.”
Around the same time, the Applicant’s ConnecTeam licence was placed into ‘hibernation’. Ms Brien, Payroll Manager for the Respondent, gave evidence that the Applicant is still an active employee in JobAdder and the MYOB payroll system. She attests that as part of the company’s continued cost mitigation management program, only candidates on active consignments are active on ConnecTeam, and employees who are taking a break or their assignment has ended, are placed into hibernation. Once a new assignment has commenced, they are moved back into active status within ConnecTeam. The practice of moving employees not presently on assignment into ‘hibernation’ on ConnecTeam is done to avoid the weekly licence costs which are otherwise charged for that person. [2]
The Respondent says that it has never dismissed the Applicant, and that he remains an active employee. In support, it provided screenshots of the Applicant’s status as at 6 July 2023 in the JobAdder and MYOB systems showing his status as “Active”. The Respondent contends that it has been waiting for advice that the Applicant is ready to resume work but has not received such advice. Indeed, at the hearing Ms Papastamatis made clear that if the Applicant is ready to return to work, the Respondent will seek to provide him with a new assignment.
The Applicant acknowledged at the hearing that although he had indicated to Michelle Hopkins that he hoped to be able to return to work around 16 April 2023, he did not actually advise the Respondent that he was ready to return to work at any time before the date he contends that he was dismissed from his employment.
The Applicant says that the Respondent made no attempts to redeploy him or maintain contact to find new work with a different host employer. Instead, the Respondent removed the Applicant’s access to ConnecTeam, and that this constituted a dismissal.
The Respondent maintains contact in various ways with its employees who are ‘active’, whether on assignment or not. An email was sent to all active candidates on 21 June 2023, including the Applicant, in relation to their employment status and ConnecTeam. The Applicant did not appreciate that this was an email sent to all candidates, and thought it was sent to him personally, and he considered it related to his general protections application which he had lodged on 19 May 2023. He responded to the effect that any communication with him should be via his solicitor.[3]
At some point after the Applicant claims he was dismissed and after he had lodged the general protections application, the Applicant had another conversation with Michelle Hopkins, in which he explained that the court situation that had triggered the need for time off had been resolved.
Was the Applicant dismissed by the Respondent?
Mr Stocks clearly believes that he was dismissed by the Respondent. However, my conclusion is that based on the facts and circumstances, he was not dismissed within the meaning of the Act.
The Applicant’s employment was on a casual basis, and as was made clear in his registration application, each assignment was a distinct period of employment on a casual basis.[4]
It is not uncommon for casual employees of labour hire firms to have gaps in between assignments. Such gaps do not, necessarily, mean that the employment relationship has ended, and that the employer has dismissed the employee.
After needing to take time off work from 16 March 2023 to deal with a very difficult issue, his assignment to the Respondent’s client, Direct Freight, ended when the client sourced a replacement person from another labour hire company. Consequently, he was advised that his assignment with Direct Freight had ended. That did not have the effect of terminating his employment with the Respondent. The Respondent was awaiting advice from the Applicant that he was ready to return to work. However, no such advice was given by the Applicant, before or after the date he contends he was dismissed.
As the Applicant was not on active assignment, in accordance with its standard procedures, the Respondent put his access to ConnecTeam in hibernation, to avoid incurring fees. The Applicant mistakenly interpreted this together with the ending of his assignment at Direct Freight, as being dismissed.
In this context, the placing of his access to ConnecTeam in hibernation in accordance with the company’s usual procedures, did not have the effect of terminating his employment with the Respondent. He remains an active employee, the fact that he has not communicated his readiness to accept another assignment does not mean that he was dismissed by the Respondent. At no point has the Respondent stated that his employment with Phoenix Source & Select Pty Ltd, as distinct from his assignment with Direct Freight, had been terminated.
The ongoing status of the Applicant on the Respondent’s records and systems, the communication with him, along with all active employees, after the date of the alleged dismissal, and the absence of any advice of his readiness to return to work, support a conclusion that his employment was not terminated by the Respondent.
Unfortunately, what occurred was assumptions were made by the Applicant, which were mistaken. They may have been avoided if, for example, the Applicant had taken steps to clarify the situation or if the Respondent had explained its process of ‘hibernating’ employees who are not on active assignment from ConnecTeam. However, that does not mean the Applicant was dismissed, and I find that he was not. I note the Respondent continues to await advice from the Applicant that he is ready to return to work, so that an appropriate assignment can be arranged.
Conclusion
As I have not found that Mr Stocks was dismissed within the meaning of the Act, the application is not within jurisdiction. The application is dismissed. An order giving effect to this decision will be issued separately.
DEPUTY PRESIDENT
Appearances:
The Applicant on his own behalf.
Ms Papastamatis on behalf of the Respondent.
Hearing details:
2023
August 11, 23 via Microsoft Teams
[1] Digital Hearing Book (DHB) p.44.
[2] DHB, p.40.
[3] The Applicant was initially represented, but his representative had ceased to act for him by the date of the hearing. A Form F54 was filed on 29 June 2023.
[4] DHB, p.44.
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