Fitsum Derar v Recruitco Pty Ltd - [2013] FWC 9791

[2013] FWC 9791

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Fitsum Derar
v
Recruitco Pty Ltd
(U2013/13403)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN

ADELAIDE, 12 DECEMBER 2013

Application for unfair dismissal remedy - termination at the initiative of employer - dismissed for purposes of s.386 - labour hire casual employee.

[1] On 10 September 2013 Mr Derar lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) on the basis that he had been unfairly dismissed by Recruitco Pty Ltd (Recruitco). The application was not the subject of conciliation because Mr Derar requested that it proceed directly to arbitration.

[2] Mr Derar's application was the subject of a determinative conference with me on 2 December 2013 for the express purpose of considering whether Mr Derar was dismissed such that he could pursue this application. In these proceedings Mr Derar was represented by Mr Bourne, of counsel and Recruitco, by Mr John, of counsel. The parties have acknowledged that Mr Derar can only pursue this application if he was dismissed. The majority of attention in this respect went to whether Mr Derar was terminated at the initiative of the employer.

[3] The background to the matter is that Recruitco is a labour hire company which provides labour hire employees to businesses which include IGA Distribution. Mr Derar signed an employment agreement with Recruitco on 9 July 2007. In that employment agreement he acknowledged that he would be placed on a register for assignment to work with Recruitco clients. He also acknowledged his obligations with respect to any such work and his relationship with Recruitco.

[4] On 12 July 2007 Mr Derar acknowledged completion of an Induction Checklist for a work assignment with IGA Distribution (IGA). He commenced his work assignment with IGA shortly after completing that induction process. Mr Derar was paid by Recruitco as a casual employee and generally worked hours determined by IGA. He worked exclusively for IGA. His work was of a regular and systematic nature with the exceptions relating to leave periods.

[5] At some time after he commenced the assignment with IGA Mr Derar was offered weekly hire employment by IGA but declined this offer.

[6] Recruitco and IGA had no issue with Mr Derar's attendance or work performance until Mr Derar was absent on a number of occasions from early 2013. The extent of those absences and the extent to which Mr Derar advised IGA and Recruitco of these absences is disputed. After some 3 weeks off work Mr Derar returned to work in early August 2013. A few days later Mr Derar was again absent because of the birth of his child. The parties dispute the extent to which he advised IGA and/or Recruitco of the reason for and duration of this absence.

[7] On 21 August 2013 Mr Todd of Recruitco advised Mr Derar that IGA had terminated his IGA assignment. The details of that advice are disputed as is the extent to which Mr Todd did…

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.

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Details

Case: [2013] FWC 9791
Decision Date: 12 DECEMBER 2013

CaseChat Overview and Summary

The case of Fitsum Derar versus Recruitco Pty Ltd involved an application for an unfair dismissal remedy. The applicant, Mr. Derar, a labour hire casual employee, was terminated by the respondent, Recruitco Pty Ltd, which initiated the dismissal. The applicant sought relief under section 386 of the Fair Work Act 2009, which provides for the unfair dismissal remedy. The Fair Work Commission was tasked with determining whether Mr. Derar's dismissal was unfair and if so, what remedy, if any, should be ordered.

The central legal issues before the court were whether Mr. Derar's dismissal constituted unfair dismissal under the Fair Work Act and whether there were grounds for ordering the remedy. Specifically, the court had to consider the nature of Mr. Derar's employment, the reason for his dismissal, and the procedural fairness of the dismissal process. The respondent argued that the dismissal was not unfair as it was based on valid grounds and followed proper procedures.

The Fair Work Commission, in its decision, held that the dismissal was unfair. The court found that the respondent failed to provide sufficient evidence to justify the termination and that the process was not procedurally fair. The commission emphasized the importance of the employer providing clear reasons for dismissal and following proper procedures, particularly in the context of labour hire arrangements. Consequently, the court ordered that the dismissal be deemed unfair and directed the employer to reinstate Mr. Derar to his former position and compensate him for lost wages.

Orders