Edmond Sundin v Harrisons Manufacturing Co Pty Ltd

[2013] FWC 9124

[2013] FWC 9124

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Edmond Sundin
v
Harrisons Manufacturing Co Pty Ltd
(U2013/12939)

DEPUTY PRESIDENT BOOTH SYDNEY, 20 NOVEMBER 2013

Application for relief from unfair dismissal.

[1] In this matter Mr Edmond Sundin (the applicant) asks the Fair Work Commission (the Commission) to exercise its discretion under s.394 of the Fair Work Act2009 (the Act) to grant a remedy for unfair dismissal in relation to the termination of his employment from Harrisons Manufacturing Co Pty Ltd (the respondent) on 9 August 2013.

[2] The application was lodged on 26 August 2013 and a telephone conciliation was scheduled for 10 October 2013. The conciliation did not go ahead as a jurisdictional objection was made by the respondent and the respondent declined to participate in the conference.

[3] The matter was listed for hearing for 1 November 2013 and directions were issued for the respondent to file submissions in relation to its jurisdictional objection and serve them on the applicant 14 days prior to the hearing. The directions were complied with and submissions were received on 18 October 2013. The matter came on before me on 1 November 2013. The applicant did not appear. Mr Joe Murphy, solicitor, Australian Business Lawyers was granted permission to appear pursuant to s.596 of the Act for Harrisons Manufacturing Co Pty Ltd for that occasion.

[4] My Chambers corresponded with the applicant subsequent to the hearing giving him 7 days to lodge a response to the respondent’s submissions and make any objection to a decision being made on the papers.

[5] A short submission was received from the applicant on 8 November 2013 with no objection made to a decision being made on the papers. His submission was acknowledged by an email from my Chambers indicating that a decision in relation to the respondent’s jurisdictional objection would issue in due course.

[6] This decision is based on the applicant’s application contained in the Form F2 dated 26 August 2013, the respondent’s response contained in the Form F3 dated 16 September 2013 , the respondent’s written submissions of 18 October 2013 and the applicant’s written submissions of 8 November 2013.

Jurisdictional objection

[7] The respondent contends that the applicant was not an employee of the respondent, the respondent was not the employer of the applicant and therefore the applicant cannot seek an unfair dismissal remedy in relation to his cessation of work with the respondent.

[8] The respondent contends that the applicant was a labour hire worker who was employed through an agency, DCL Recruitment, from 29 January 2013 to 9 August 2013. The respondent provided convincing documentary material to substantiate that it has a commercial arrangement with DCL recruitment to provide temporary labour. The applicant was not paid directly by the respondent. The respondent provided the Commission with copies of invoices from DCL Recruitment to Harrisons Manufacturing Co Pty Ltd for payment for the temporary placement of the applicant with the respondent.

[9] The applicant concedes that he was not an employee of the respondent. In his submission of 8 November he says:

“I would like to take further legal action against the harrisons manufacturing as I was not an employee of the company and was hired by a recruitment agency. I am still under the recruitment agency and therefore I was not dismissed by the agency but by harrisons manufacturing. (sic)”

Statutory framework

[10] The Commission exercises its discretion in relation to an application for an unfair dismissal remedy pursuant to Part 3-2 Unfair Dismissal of the Act. There are certain conditions that an applicant must meet in order to have their application considered.

[11] Section 394 of the Act provides that a person who has been dismissed may make an application for an unfair dismissal remedy. Insofar as it is relevant to this matter s.394 of the Act reads as follows:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy. (my emphasis)

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

[12] Section 385 of the Act reinforces this when it sets out the circumstances in which a person may be found to have been unfairly dismissed. One of these circumstances is that the person has been dismissed.

[13] Section 385 of the Act reads as follows:

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

[14] Section 386 sets out the meaning of “dismissed” as follows:

386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.

[15] It is clear from s.386(1)(a) that a person must be dismissed from the employer he or she was employed by and it is agreed that this is not the circumstance the applicant finds himself in.

[16] There is no submission that there is a contract of employment between Mr Sunkin and Harrisons Manufacturing Co Pty Ltd. In his submission the applicant said:

“Phil jordan who was plant manager when i started told me if i showed ability to blend then i would have a permanent position within six months with the company i was also told by my supervisors. I blended for four months of the seven months i had been with the company and within the sixth month i was told that at any time i would be called to the office to be made permanent. I worked hard to earn my position and to be dissmissed for a position that is rightfully mine i find that to be appalling (sic).”

[17] His anticipation of future employment is consistent with his view expressed earlier in his submission that he “was not an employee of the company”.

[18] It seems clear that Harrisons Manufacturing Co Pty Ltd was not Mr Sunkin’s employer. The circumstances would appear to be similar to those described by a Full Bench of the Australian Industrial Relations Commission, the predecessor to the Commission, in Advanced Workplace Solutions Pty Ltd.  1 In that decision the Full Bench said at paragraph 95:

“....we think that establishing that the respondent is the employer is as essential an element in an applicant’s case as establishing that his or her employment was terminated by the respondent ....”

[19] It is clear that Harrisons Manufacturing Co Pty Ltd no longer required the applicant’s services, but it appears that it did not dismiss him within the meaning of the Act because it was not his employer.

Conclusion

I find that the applicant was not employed by the respondent and accordingly his application for an unfair dismissal remedy against Harrisons Manufacturing Co Pty Ltd cannot proceed. His application is dismissed. An order will issue with this decision.

DEPUTY PRESIDENT

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