Gabriel Peddie v CJ Global Tech Pty Ltd
[2024] FWC 897
•8 APRIL 2024
| [2024] FWC 897 |
| FAIR WORK COMMISSION |
| REASONS FOR DECISION |
Fair Work Act 2009
s.365—General protections
Gabriel Peddie
v
CJ Global Tech Pty Ltd
(C2024/1368)
| COMMISSIONER CRAWFORD | SYDNEY, 8 APRIL 2024 |
General protections dismissal dispute – jurisdictional objection – not an employee – jurisdictional objection dismissed – certificate to be issued
Background
On 1 March 2024, Gabriel Peddie (Mr Peddie) filed a Form F8 application with the Fair Work Commission (Commission) under s.365 of the Fair Work Act 2009 (Cth) (FW Act) for the Commission to deal with a dispute arising out of Mr Peddie’s allegations that he was dismissed from his employment with CJ Global Tech Pty Ltd (CJ Global Tech) in contravention of Part 3-1 of the FW Act. Mr Peddie’s application identifies a dismissal date of 15 February 2024.
CJ Global Tech operates a technology innovation business. Mr Peddie’s letter of engagement identifies his role as Junior Full Stack Developer.
On 9 March 2024, CJ Global Tech filed a Form F8A response form. The form identified a jurisdictional objection on the basis that Mr Peddie was not an employee of CJ Global Tech and hence could not have been dismissed.
I issued directions for the filing of material and listed the jurisdictional objection for hearing via video on 3 April 2024.
Mr Peddie represented himself at the hearing with assistance from his father, David Peddie. Justin Derry (CEO and Director) represented CJ Global Tech with assistance from Cindy Derry (CFO and HR Manager).
At the end of the hearing, I informed the parties that I had decided to dismiss CJ Global Tech’s jurisdictional objection. I indicated a brief written decision would be provided in due course.
After informing the parties of my decision, I proceeded with the consent of the parties to conduct a conciliation conference to try and resolve the dispute. The parties did not reach agreement during the conference, and both agreed a certificate should be issued under s.368 of the FW Act.
The following are my reasons for dismissing CJ Global Tech’s jurisdictional objection.
Material filed
Mr Peddie
Mr Peddie relied on the following material in support of his argument that he was dismissed by CJ Global Tech:
· A Form F8 application form with 12 documents attached. The documents included Mr Peddie’s signed letter of engagement dated 20 December 2023 and copies of emails which demonstrate Mr Peddie and Mr Derry agreed to a commencement date of 29 January 2024. The attachments also include emails between Mr Peddie and Mr Derry on 15 February 2024. An email from Mr Derry to Mr Peddie at 08:53 includes the following statements:
“The simple answer is that the offer for employment we made previously for you prior to xmas is not going to work…
So what this means now is that going forward we don’t have a position for you to fill…
I do wish you all the best in your endeavours, I think to be honest you would be well suited in a very large development group like a bank or somewhere with a team of structured developers and a lighter and more defined workload.”
I marked the Form F8 and the attached documents Exhibit A1.
· A statement from Mr Peddie dated 1 April 2024 which had 10 documents attached. The documents included copies of Mr Peddie’s New Zealand passport, his Australian Citizenship Certificate and screen shots of Seek advertisements relating to CJ Global Tech. I marked the statement, and its attachments, Exhibit A2.
· A statement from David Peddie dated 1 April 2024. CJ Global Tech objected to the parts of the statement that concerned events after David Peddie had left Australia on 25 January 2024 on the basis that this was hearsay evidence. I agreed that Mr Peddie’s evidence from 25 January 2024 is based solely on what he was told by his son and that it has very limited probative value. However, I indicated I would admit the statement into evidence and deal with those issues as a matter of weight. I marked the statement Exhibit A3. David Peddie was not cross-examined on his evidence.
Mr Peddie was cross-examined on his evidence by Mr Derry.
Mr Peddie and his father both made oral submissions at the end of the hearing.
CJ Global Tech
CJ Global Tech relied on the following material in support of its jurisdictional objection:
· Form F8A employer response form. This contains evidence about the relevant events. I marked the Form F8A employer response form Exhibit R1.
· A statement from Mr Derry dated 24 March 2024 which had the following documents attached: an email thread between Mr Derry, Mrs Derry and Mr Peddie on 20 December 2023, a blank New Employee Form, and a Fair Work Ombudsman checklist about starting a new job. I marked the statement, and its attachments, Exhibit R2.
Mr Derry was cross-examined by Mr Peddie and his father.
Mr Derry made oral closing submissions at the end of the hearing.
RELEVANT STATUTORY PROVISIONS
Mr Peddie’s application has been made pursuant to s.365(1) of the FW Act, which states:
Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b)the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.
The meaning of “dismissed” is prescribed in s.386 of the FW Act, which states:
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.
It follows from this definition that an application can only be made pursuant to s.365 of the FW Act if there was an employment relationship between the applicant and the respondent.
CONSIDERATION
I considered the following facts to be clear based on the evidence provided by the parties:
a.There is a written employment contract dated 20 December 2023 that was signed by Mr Derry on behalf of CJ Global Tech and by Mr Peddie on 21 December 2023. In terms of a commencement date, the contract states in clause 1.1 that “Your start date will be TBA in January or February 2024.”
b.Mr Derry and Mr Peddie exchanged emails on 19 January 2024 and 22 January 2024 in which they reached agreement for a start date of 29 January 2024.
c.Mr Peddie attended CJ Global Tech’s office to perform work at the direction of CJ Global Tech on 29, 30 and 31 January 2024.
d.Mr Peddie was called into a meeting with Mr Derry on 31 January 2024 and was directed to cease work.
e.Mr Derry sent an email to Mr Peddie on 15 February 2024 which confirmed the end of the employment relationship between Mr Peddie and CJ Global Tech and that no further work would be provided to Mr Peddie in his existing role and that no alternative role had been identified.
f.Mr Peddie did not provide CJ Global Tech with the employee onboarding information it had requested prior to his employment ending on 15 February 2024.
Based on these findings, I am satisfied that Mr Peddie commenced employment with CJ Global Tech on 29 January 2024. This is established by the employment contract, the emails confirming the start date, and by Mr Peddie’s attendance at the office on 29, 30 and 31 January 2024.
I am also satisfied that Mr Peddie was not notified of his dismissal until 15 February 2024 and that this was the date his dismissal took effect. I do not consider that CJ Global Tech’s argument that it had decided to dismiss Mr Peddie on 31 January 2024 but was too concerned about his mental health to communicate that decision, could result in an earlier dismissal date. It is well established that a dismissal does not take effect until it is communicated to the employee. [1]
CJ Global Tech’s primary argument in support of its jurisdictional objection was that Mr Peddie never commenced employment because he did not provide CJ Global Tech with information to verify his identity and other onboarding information that was required for him to be entered as an employee into its accounting systems. I do not accept this argument. The employment contract makes no reference to the employment commencing once Mr Peddie had provided all the necessary paperwork. The contract states the employment was to commence on a date to be advised in January or February 2024. It is clear Mr Derry provided notice in writing that the commencement date would be 29 January 2024. Mr Peddie attended the office and performed work on this date. The absence of paperwork cannot have the legal effect of meaning the employment did not commence in accordance with the clear terms of the contract, particularly when the employee has commenced attending the workplace to perform duties, including onboarding training.
I accept that Mr Peddie’s failure to provide the onboarding information was a substantial practical problem for CJ Global Tech that needed to be addressed. Further, an ongoing refusal to provide this type of information would be highly likely to justify the dismissal of an employee. However, that situation constitutes a refusal from an employee to follow a lawful and reasonable direction from their employer resulting in disciplinary action. It does not have the legal effect of meaning the employment never commenced.
CONCLUSION
I determined to dismiss CJ Global Tech’s jurisdictional objection for the reasons identified above.
I conducted a conciliation conference after the hearing on 3 April 2024. I am satisfied that all reasonable attempts to resolve the dispute have not been successful. A certificate will be issued after this decision is published.
COMMISSIONER
Appearances:
Mr Peddie represented himself with assistance from his father, David Peddie.
Mr Derry represented CJ Global Tech.
Hearing Details:
3 April.
Via Video.
2024.
[1] Australian Rail, Tram and Bus Industry Union v Pacific National Services Pty Ltd [2022] FWCFB 23 at [19] and Ayub v NSW Trains [2016] FWCFB 5500 at [50].
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