Dung Thai v Adecco Group
[2024] FWC 2292
•27 AUGUST 2024
| [2024] FWC 2292 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Dung Thai
v
Adecco Group
(U2024/5613)
| COMMISSIONER PERICA | MELBOURNE, 27 AUGUST 2024 |
Application for an unfair dismissal remedy
INTRODUCTION
Mr. Dung Thai commenced his employment with Adecco Australia Pty Ltd (“Adecco”) on 7 September 2023. From 11 September 2023, he commenced his first client assignment for Adecco as a warehouse operator at Carrier Transicold Australia’s (“CTA”) facility at 58 Calarco Drive in Derrimut.
Mr. Thai worked there without incident until an altercation occurred between Mr. Thai and a full-time worker employed by CTA. CTA performed what has been described as an
“internal investigation” into the incident.
CTA directed Adecco to end Mr. Thai’s assignment to CTA “effective immediately”. This CTA assignment was the last time Mr. Thai took up an assignment for Adecco.
On 22 May 2024, Mr. Thai made an application alleging he had been unfairly dismissed by Adecco. Mr. Thai did not specify a remedy in his application. During the determinative conference, he stated, “I just want to bring to your attention Adecco’s behaviour to their employees and I leave it in your…hands, whatever the result”.
Adecco raised a jurisdictional objection that Mr. Thai had not been dismissed as required by s 385(a) as he was still an employee of Adecco.
On 3 July 2024, directions were issued up the hearing of the jurisdictional objection by determinative conference. Mr. Thai failed to comply with those directions and filed no material.
On 25 July 2024, the determinative conference was heard. Mr. Thai represented himself, made submissions and gave evidence through an interpreter. Adecco was represented by Mr. Carter, the Group ER/IR Manager for Australia and New Zealand for Adecco. Evidence was given for Adecco by Mr. Dontsios, a Senior Account Manager at Adecco.
For the reasons I set out below, I find that Mr. Thai had not been dismissed. It follows his application for an unfair dismissal remedy fails for want of jurisdiction and is dismissed.
BACKGROUND FACTS
Documents exchanged before the assignment at CTA
On 7 September 2023 at 9:54 AM, Mr. Jianni Dontsios, the Account Manager at Adecco sent Mr. Thai an e-mail in the following terms (“the Dontsios e-mail”):[1]
“Please see confirmation letter attached.
You will be commencing at Carrier on Monday 11/09/2023 at 8:30am and meeting with Patrick Hill. Please arrive 10 minutes early.
Congratulations!
Please reply to this e-mail as confirmation”
The Dontsios e-mail attached a letter dated 7 September 2023 headed “Confirmation of Client Assignment – Carrier Transicold Australia”. It confirms Mr. Thai’s assignment to CTA as a casual employee by Adecco.[2] The assignment to CTA “forms part of a labour hire arrangement between Adecco and CTA, and that “the client assignment is not an ongoing or permanent role with Carrier, or Adecco”. It provides details of the assignment such as the day he was to start on 11 September 2023, the location of the workplace and the person to whom he was to report. The attached letter went on:
“As detailed in the Candidate Declaration and Consent Form, the Client Assignment may be ended at any time by Adecco or Carrier.
The terms outlined above are only applicable to the Client Assignment referred to in this letter.
At all times during this Client Assignment, you will be a casual employee of Adecco and therefore, the existing terms, conditions, and obligations of your employment with Adecco as outlined in the Candidate Declaration Form continue to apply.”
The “Candidate Declaration and Consent” form referred to in the letter sets out the terms and conditions of employment that applied to the assignment.[3] Those terms included:
· At Clause 2:
“I am employed as a casual employee. I acknowledge that I have no guarantee of ongoing employment and may from time to time be offered client assignments by Adecco. I am under no obligation to accept any client assignment I am offered by Adecco.”
· At Clause 7:
“Client assignments are subject to Adecco maintaining its contracts with its clients. The length of any client assignment is determined according to the needs of the client and is not controlled by Adecco. If a client assignment ends, I understand there:
(a) is no obligation from Adecco to offer me alternative work or future client assignments; and
(b) is no guarantee of future client assignments.”
· At Clause 8:
“The client may vary or terminate the client assignment at any time. In such circumstances, and where possible; Adecco will give me one (1) hours’ notice of the cessation of the client assignment, unless advised otherwise.”
No signed version of Candidate Declaration and Consent form was received into evidence.
At 9:56 AM on 7 September 2023 (two minutes after the Dontsios e-mail), Mr. Thai replied “confirmed. Thank you”.[4]
Assignment to CTA
Mr. Thai commenced work at CTA on 11 September 2023. He first worked in the small parts warehouse. He then moved to operating a forklift. The work process was “he would receive an order by e-mail, he would find the goods in the warehouse and put them in a package”.[5]
Mr. Thai’s altercation with a coworker
Around 1 May 2024, Mr. Thai was involved in an altercation at work with a direct employee of CTA (referred to as “Scott”). Mr. Thai’s evidence was that “Scott threated to physically hit” him.[6]
Mr. Thai gave evidence of the circumstances of the altercation. They had received an order from the Sydney Warehouse. Mr. Thai could not locate the parts, so he asked Scott to help him. While Mr. Thai was “looking everywhere” for the part, Scott, “out of the blue” said to Mr. Thai “I hate you” and “raised his fist and threatened to hit” him. Scott then went upstairs to bring down more parts and said that he “hates to work together” with Mr. Thai. As a result of this altercation, Mr. Thai reported the matter to management at CTA. He was instructed to return home and that he would be paid while the matter was investigated.[7]
Mr. Thai’s evidence of his May conversations with Mr. Dontsios following the altercation
Mr. Thai’s evidence was the next person he heard from was Mr. Dontsios from Adecco, who said to him to “wait until next Tuesday when we hear about the result of the investigation”.[8] Mr. Thai “heard nothing further from Mr. Dontsios” until Mr. Thai contacted him and was told that he “was not needed (by CTA) anymore”.[9] Mr. Thai said to Mr. Dontsios “I was the wronged person, and I am the one that got terminated by Adecco” and “How come they did not bring the matter to the Fair Work Commission? How come they do not do anything to protect, an employee like me?”[10]
Mr. Dontsios’ evidence of his conversations with CTA and Mr. Thai
Mr. Dontsios’ evidence on this exchange is somewhat different. He says on 10 May 2024, an employee of CTA contacted him by telephone and advised him that CTA had “completed an internal workplace investigation into Mr. Thai’s conduct” concerning a “confrontational interaction between a full-time employee of CTA and Mr. Thai”.[11] The outcome was they would have to let Mr. Thai go, effective immediately, and that the full-time employee was reprimanded under their process.[12] CTA directed Mr. Dontsios to end Mr. Thai’s assignment to CTA “effective immediately”.
Mr. Dontsios’ evidence was he then contacted Mr. Thai by telephone to inform him that CTA had directed Adecco to end Mr. Thai’s assignment. His recollection of the telephone conversation was “he gave me further information regarding the altercation”. Mr. Thai told him “there had been a verbal argument and then a large disagreement and he wanted to stay at CTA”. Mr. Dontsios told Mr. Thai, “Look, effective immediately your assignment has been ended”.[13] He then advised Mr. Thai that he would “assist in trying to find additional assignments for him when opportunity arose”. Mr. Dontsios’ evidence was that “unfortunately, we were quite quiet with regards what would we had available that would suit Mr. Thai’s skillset. I did not have much further interaction with him the two weeks following post 10 May.”[14] Mr. Thai resolutely denied Mr. Dontsios had said anything like this in this conversation.[15]
Late May discussion of assignments after CTA
Mr. Dontsios said “around two weeks after the 10 May conversation”, an opportunity for an assignment did arise. Mr. Dontsios rang Mr. Thai to discuss the potential opportunity with him. According to Mr. Dontsios, Mr. Thai told him he was going through “a bit of stress, a bit of anxiety, a bit of depression in regards not having work and he was going through a process with that” and therefore he was not able to work.[16]
There was no documentary record or notes produced by Adecco in relation to this conversation. Mr. Thai denies any conversation regarding a potential assignment occurred in late May.[17]
4 June discussion regarding an assignment at PACT Group Holdings
Mr. Dontsios gave evidence that at 3:32 PM on 4 June 2024, he contacted Mr. Thai to offer him a further assignment at PACT Group Holdings. Mr. Dontsios’ evidence was that “he was not able to go into depth regarding the job description, the role, or the location, or any specifics.” He said “[Mr. Thai] shut that down before I even had a chance to discuss the actual position to him”.[18]
Mr. Dontsios took a record of that conversation. This document was put into evidence as Exhibit R1. It reads “contacted Dung and advised I had a role for him. He wanted to wait for the outcome of Fair Work before discussing or accepting anything.” Mr. Thai accepted that he had this conversation with Mr. Dontsios.
Medical Certificates
In his oral evidence Mr. Dontsios confirmed he had received two medical certificates from Mr. Thai in relation to his fitness for work at Adecco.[19]
During the proceeding, I asked the parties to produce the medical certificates which had been sent to Adecco by Mr. Thai. The Commission received both pages of a certificate which was issued on 8 June 2024 following an examination by his treating doctor on 8 June 2024, which stated he had “no capacity for employment from 9 June 2024 to 7 July 2024”. It also received the front page of a certificate which followed an examination by his treating doctor on 1 May 2024. This stated on the front page that Mr. Thai was “unfit for duties.” Mr. Thai confirmed he had sent these documents to Adecco.[20] The full certificate dated 8 June 2024, and the first page of the certificate following the examination on 1 May were admitted into evidence as Exhibit A1.
CONSIDERATION
Mr. Thai argues the ending of his assignment to CTA was effectively a dismissal from Adecco.
Mr. Thai, by sending his 7 September 2024 confirmation e-mail accepted the terms of the client assignment to CTA as a casual employee of Adecco that had been offered to him by the Dontsios e-mail earlier that day.
The terms he confirmed included an acknowledgement that “Adecco makes no advance commitment to continuing or indefinite work, either with Adecco or for the purposes of providing services under a client assignment”. He also acknowledged there was “no guarantee of ongoing employment”.
Despite these terms, the Commission has found Adecco to have dismissed an employee by failing to provide a further assignment in Kool v. Adecco,[21] and Raskov v. Adecco.[22] In Kool, Deputy President Asbury (as she then was) and Deputy President Wright in Raskov found “where the applicant had worked for a single host employer for an extended period and was removed from the host employer’s site for conduct … issues rather than operational requirements and was not provided with an alternative assignment they were matters weighing in favour of a finding of dismissal”.[23]
Those cases can be readily distinguished from this case. Mr. Thai accepted that on 4 June 2024, he had been offered a further assignment with PACT International. He refused this assignment on the basis that he was “waiting for the outcome of Fair Work”. That offer by Adecco, coming ten days after the commencement of these proceedings, may well have been tactical, however, it is fatal to his claim that his employment relationship with Adecco had ended when his assignment to CTA had ended.
Further, the two medical certificates Mr. Thai sent to Adecco are also a mortal blow to his argument. If the ending of the CTA assignment had been the end of his employment relationship, why would he need to establish that he had no capacity to work for Adecco? His contract of employment continued.
The engagement of externally employed casual labour hire has proliferated in Australia over the last two decades. The business model is a risk shifting exercise for the host employer. Rather than directly employing workers to deal with work surges, businesses engage externally employed labour hire workers. These externally employed workers come without the on-costs associated with direct employment or the legal regulation of the process of ending a direct employment relationship. The contract between the host and the labour hire provider is structured to ensure that labour hire workers on assignment can be added or removed at will by the host. This sometimes has unfortunate consequences for the labour hire employees where their long-term assignments are ended abruptly.
I only have Mr. Thai’s evidence on the altercation which saw the end of his CTA assignment. I cannot, on that basis, determine who was responsible for the altercation at CTA. Mr. Thai was never told the reason his assignment was ended other than his involvement in the altercation. His culpability or otherwise for the altercation was never explained to him. This seems to have affected his mental health.
These circumstances, however, do not alter the plain fact that Mr. Thai had was not dismissed from his employment at Adecco. After the CTA assignment he was offered a further assignment, and he sent two medical certificates saying he was not fit for work at Adecco. He continued to be an employee of Adecco.
CONCLUSION
To bring an unfair dismissal application an employee must have been dismissed. Mr. Thai was not dismissed. This application fails for want of jurisdiction and is therefore dismissed.[24]
COMMISSIONER
Appearances:
Mr. Dung Thai, the Applicant, for himself.
Mr. Michael Carter for the Respondent.
Hearing details:
25 July 2024
Melbourne and Microsoft Teams
[1] Digital Court Book (from here referred to as “DCB at”) at 26.
[2] DCB at 19-20.
[3] DCB at 21-25.
[4] DCB at 26.
[5] PN117.
[6] PN136 to 142.
[7] Ibid.
[8] PN149.
[9] PN150.
[10] PN152.
[11] PN74.
[12] PN76.
[13] PN81.
[14] PN84.
[15] PN160.
[16] PN86.
[17] PN159.
[18] PN310.
[19] PN92.
[20] PN340.
[21] Kool v. Adecco International trading as Adecco[2016] FWC 924.
[22] Raskov. v. Adecco Australia Pty Ltd[2024] FWC 584.
[23] Ibid [48].
[24] PR778692.
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