Fawad Shah v APG Hire Pty Ltd

[2023] FWC 2167

[2023] FWC 2167

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Fawad Shah
v

APG HIRE PTY LTD

(C2023/3862)

DEPUTY PRESIDENT DEAN CANBERRA, 31 AUGUST 2023

Application to deal with contraventions involving dismissal – not dismissed.

1. Mr Fawad Shah (Applicant) has made an application pursuant to s.365 of the Fair Work Act 2009 to deal with a general protections dispute involving his alleged dismissal by APG Hire PTY LTD (Respondent).

1. The Respondent is a labour hire company. The Applicant was engaged on a casual basis in July 2022 when he was placed on assignment with a client of the Respondent (the host employer).

1. The Applicant alleges he was dismissed on 15 September 2022 when he sustained an injury at work (with the host employer) for which a workers compensation claim was made. He was unable to work for several months after this date.

1. The ‘job’ the Applicant seeks to be returned to is the position he performed for the host employer.

1. The Respondent has raised a jurisdictional objection to the application on the basis that the Applicant was not dismissed.

1. The Commission must determine whether the Applicant was dismissed before it can exercise powers under s.368 of the Act to deal with the dispute about whether her dismissal was in contravention of the general protections provision.[1]

1. A hearing to determine the jurisdictional objection took place on 30 August 2023. The Applicant failed to file any evidence in compliance with the directions that were issued, and advised he would not attend the hearing. Accordingly, the hearing took place in his absence.

1. The Respondent filed an outline of submission and witness statements made by Ms Kimberley Vatos, National HSEQ Manager, and Mr Siyang Dou, Recruitment Consultant. Both witnesses attended the hearing and confirmed their statements.

1. Based on the uncontested evidence I find the Applicant was not dismissed for the following reasons:

a.The Applicant’s employment contract made it clear that the availability of work might be intermittent, and he had the right to refuse or accept any assignment offered by the Respondent.

b.On numerous occasions after 15 September 2022 the Applicant provided the Respondent with medical incapacity certificates. The Respondent arranged for the host employer to provide the Applicant with light duties however the Applicant advised the Respondent he could not perform light duties which supported by an amended medical certificate.

c.The Respondent followed up with the Applicant as to his capacity to perform work on numerous occasions and to request updated medical certificates.

d.On 6 March 2023 when the Respondent again requested an updated medical certificate, the Applicant advised he had not attended a scheduled medical appointment and had found employment elsewhere. He also advised he “wanted to get back to [the host employer]”.

e.The Applicant remains a casual employee and the Respondent has encouraged him to apply for positions that match his skills and experience. The Respondent has continued to provide his details to host employers for their consideration when he has expressed interest in a particular role.

f.The Respondent cannot require its clients, i.e. a host employer, to engage any particular employee of the Respondent.

1. If I am wrong and the Applicant was dismissed on 22 September 2022, then his application has been made more than 7 months beyond the timeframe allowed by the Act and only if there are exceptional circumstances can the application proceed. There is no evidence of exceptional circumstances and accordingly I would not have extended time for the Applicant.

1. The application is dismissed.

DEPUTY PRESIDENT

Appearances:

C Vandasalam for APG Hire PTY LTD.

Hearing details:

2023.
By telephone:
August 30.

[1] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152.

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