Francisca Celeste O'Reilly v Hays Specialist Recruitment (Australia) Pty Limited

[2022] FWC 1002

[2022] FWC 1002

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Francisca Celeste O’Reilly
v

Hays Specialist Recruitment (Australia) Pty Limited

(U2022/2266)

COMMISSIONER BISSETT MELBOURNE, 6 MAY 2022

Application for an unfair dismissal remedy – jurisdictional objection – employee not dismissed – objection upheld

1. Ms Francisca O’Reilly (Applicant) has made an application pursuant to s.394 of the Fair Work Act 2009 (FW Act) in which she seeks a remedy for unfair dismissal. Ms O’Reilly says that she was dismissed from her employment by Hays Specialist Recruitment (Australia) Pty Ltd (Hays or the Respondent).

1. The Respondent has raised a jurisdictional objection to the application. It says that it has not terminated the employment of Ms O’Reilly. For this reason it says that the Commission does not have jurisdiction to hear the unfair dismissal application.

1. The jurisdictional objection of the Respondent was heard by me on 2 May 2022.

1. At the commencement of proceedings, having heard from each party, I determined to hear the application by way of determinative conference.

1. Evidence was given in the proceedings by Ms Nicola Cavaleri, a principal recruitment partner with the Respondent and by the Applicant.

LEGISLATIVE PROVISIONS

1. Section 385 of the FW Act states that a person is unfairly dismissed if the Commission is satisfied that (amongst other matters) the person has been dismissed.

1. The meaning of “dismissed” for the purposes of an unfair dismissal application is set out at s.386 of the FW Act:

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.

1. There is no submission that the Applicant resigned her employment. It is therefore necessary, in resolving the jurisdictional objection, to decide if the Applicant’s employment was terminated by the Respondent on the Respondent’s initiative.

FACTUAL MATTERS

1. Much of the matters pertaining to the employment of the Applicant are not contentious and are set out below.

1. The Applicant signed a “terms of engagement” with the Respondent on 2 June 2021.[1] The terms of engagement provide for the following (amongst other matters not relevant to the matter before the Commission):

·     The Applicant would be offered casual assignments on an “as required” basis by the Respondent

·     The terms of engagement would apply to any casual assignment offered by the Respondent and accepted by the Applicant

·     As a casual employee the Applicant’s engagement with the Respondent is “intermittent, irregular and unpredictable”

·     The Respondent was under no obligation to offer any casual assignments to the Applicant

·     A casual assignment could be lengthened or ended at the absolute discretion of the Client

·     During a casual assignment the Applicant would be offered hours of work dependent on availability and Client need

·     During any assignment the Applicant would be paid by the Respondent

·     The Applicant undertakes to “Observe any policies, procedures, rules and regulations of the Client’s organisation…”

1. The Applicant commenced an assignment with Westpac Group (the Client) on 19 July 2021.

1. In October 2021 Westpac advised that it intended to introduce a policy regarding vaccinations for workers attending Westpac offices from 1 February 2022. The Applicant acknowledged receipt of this advice, indicated that she would not be vaccinated (at that time) and acknowledged that she would not be able to continue working at Westpac beyond the end of her contract in January 2022. The policy change by Westpac was confirmed in further advice to the Applicant from the Respondent on 10 November 2021.[2]

1. On 6 December 2021 the Applicant emailed the Respondent and advised that her contract with Westpac would conclude on 28 January 2022. The Applicant indicated that she would like a further assignment – preferably permanent work but she would accept contract work. She indicated that work in the finance sector would be her preference but she was also interested in contract administration or construction estimating. By reply on 9 December 2021[3] Ms Arielle Stavropolos of the Respondent said as follows:

Thank you for your email – Christina is on leave but I am handling everything in her absence.

I have been in contact with Dion re your end date, and he has advised me that he has extended you in their systems until the 31.01.2022, as this is the max period for unvaccinated staff members.

In terms of looking for other work unfortunately, all the clients Christina, Nicola and myself recruit for require all new and existing staff members to be fully vaccinated. We know how you feel on this topic so will not be able to represent you for any roles we have on.

Most of our clients across the HAYS business are the same, but it does go by case by case basis. Please keep an eye out on the HAYS website for anything you feel your suited for, and the required consultant will be able to advise you accordingly based on their individual clients.

We wish you all the very best!

Take care!

SUBMISSIONS

1. The Respondent submits that it has taken no action to terminate the Applicant’s employment. The Applicant’s placement at Westpac ended because she was not vaccinated in accordance with Westpac policy and was therefore unable to fulfil the inherent requirements of her position. Following the end of that placement, the Respondent remained ready and willing to place the Applicant with a suitable client. The Respondent submits therefore that the Applicant was not dismissed within the meaning of s.386 of the FW Act.

1. While the Applicant does not dispute the factual matters set out above she did submit, and gave evidence, that she considered the email of 9 December 2021 to indicate that the Respondent would not put her forward for any further placements. In particular the Applicant submits that the email from Ms Stavropolos:

   made it clear that Hays Recruitment will not be able to assist me to get other work in her statement quote, “In term of looking for other work unfortunately, all the clients Christina, Nicola and myself recruit for require all new and existing staff members to be fully vaccinated. We know how you feel on this topic so will not be able to represent you for any roles we have on.”[4] (emphasis in original)

1. The Applicant understood from this email that she would not be offered further assignments although agreed that she had sought a placement for a position on the Hays website after the end of her assignment with Westpac (which, for unrelated reasons, she was unsuccessful). The Applicant considered that her view that she had been dismissed was confirmed by the failure of the Respondent to personally contact her and arrange a placement for her with another client.

1. The Applicant submits that the decision not to offer placements to her was unfair as she suffered financial hardship as a result.

CONSIDERATION

1. Whether or not a person has been dismissed is a matter of jurisdictional fact. If a person has not been dismissed within the meaning of the FW Act there is no basis on which a claim for remedy for unfair dismissal may be pursued.

1. The matter to determine is if the Respondent, on its initiative, has taken any action to terminate the Applicant’s employment with the Respondent.

1. In this case I am not satisfied that the Applicant’s employment has been terminated by the Respondent. I accept that the Applicant’s placement with Westpac came to an end as the Applicant was not compliant with a policy of Westpac (as required under her terms of engagement with the Respondent) in that she was not vaccinated for COVID-19. For this reason she could not perform the inherent requirements of the placement with Westpac.

1. The email to the Applicant from Ms Stavropolos did no more than set out the factual circumstances for the Applicant – that it was unlikely she could be placed by Christina, Nicola or herself as the clients they dealt with all required staff (and anyone placed by the Respondent) to be vaccinated. It goes without saying that, until she is vaccinated, the Applicant cannot be placed with a client that requires vaccination as a matter of policy or Government direction.

1. However, the email from Ms Stavropolos also advised the Applicant that she should continue to browse the Respondent’s website and, if she sees any jobs which she thinks she could do and interest her, she should contact the relevant consultant.

1. The Applicant’s complaint is that she should have been provided with personal service in which another position was secured for her by one of the Respondent’s consultants. However, this is not the terms of engagement the Applicant signed. She signed with the Respondent as a casual employee and the terms of engagement are clear in this respect. There is no indication in the terms of engagement that the Applicant would receive personalised service such as that she seems to expect.

1. The Applicant has not been further placed in a position with a client by the Respondent but this reflects that the Applicant appears, on the evidence of Ms Cavaleri and without any counter evidence of the Applicant, to have only sought out one placement with a client post the completion of her placement with Westpac. A key factor in the Applicant not being further placed by the Respondent is that she has not taken action to identify any positions with the Respondent that she is interested in and, beyond the one email indicating her preferences, does not appear to have had any further engagement with the Respondent. That is, the Applicant has been a passive bystander.

1. The Applicant remains on the Respondent’s books, is free to seek further support from the Respondent and to identify positions and seek placement in those positions through the Respondent.

1. For these reasons I am not satisfied that the Respondent has taken any action that has brought about the end of the employment of the Applicant.

CONCLUSION

1. Having found the Applicant was not dismissed the Commission does not have jurisdiction to deal with the application for remedy for unfair dismissal.

1. The application of Ms O’Reilly is therefore dismissed. An order[5] to this effect will be issued with this decision.

COMMISSIONER

[1] Respondent submissions and evidence, document 1

[2] Respondent submissions and evidence, document 3

[3] Respondent submissions and evidence, documents 4 & 5

[4] Statement and submission of Applicant

[5] PR741156.

Printed by authority of the Commonwealth Government Printer

<PR741155>