Dung Thai v Adecco Group - [2024] FWC 2292

[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.…

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 Dung Thai v Adecco Group

Details

AGLC: Dung Thai v Adecco Group [2024] FWC 2292
Case: [2024] FWC 2292
Decision Date: 27 AUGUST 2024

CaseChat Overview and Summary

Dung Thai filed an application against Adecco Group, alleging he had been unfairly dismissed. The case was heard and determined by Commissioner Perica of the Fair Work Commission. The central issue was whether Mr. Thai had been dismissed by Adecco, which would be a prerequisite for the Commission to have jurisdiction over his unfair dismissal claim. Mr. Thai argued that the termination of his assignment to Carrier Transicold Australia (CTA) by Adecco constituted an unfair dismissal. Conversely, Adecco contended that Mr. Thai had not been dismissed and thus the Commission lacked jurisdiction to hear the application.

The Commissioner found that Mr. Thai had not been dismissed by Adecco. The evidence showed that Mr. Thai was a casual employee under a labour hire arrangement with Adecco. His employment with Adecco continued despite the termination of his assignment at CTA. Adecco had offered Mr. Thai further assignments after the CTA incident, which he had refused. Additionally, Mr. Thai had sent medical certificates to Adecco indicating he was unfit for work, suggesting his employment contract with Adecco was still in effect. The Commissioner concluded that Mr. Thai had not been dismissed as required by section 385(a) of the Fair Work Act 2009. Therefore, the application for an unfair dismissal remedy was dismissed for lack of jurisdiction.

This decision highlights the distinction between the termination of a specific client assignment under a labour hire arrangement and an outright dismissal of employment. The Commissioner's ruling underscores the importance of adhering to the legal definitions and requirements when bringing an unfair dismissal claim before the Fair Work Commission.

Orders