Gregory Alan Williams v Ft Workforce Pty Ltd & CPB Contractors Pty Limited & DT Infrastructure Pty Ltd

[2023] FWC 3404

[2023] FWC 3404

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Gregory Alan Williams
v

FT Workforce Pty Ltd
&
CPB Contractors Pty Limited & DT Infrastructure Pty Ltd

(C2023/6255)

DEPUTY PRESIDENT BEAUMONT PERTH, 20 DECEMBER 2023

Application to deal with contraventions involving dismissal

1. Dispute and outcome

1. Mr Gregory Alan Williams (the Applicant) applied under s 365 of the Fair Work Act 2009 (Cth) (the Act) for the Commission to deal with a general protections dispute involving dismissal.  The Applicant submitted that FT Workforce Pty Ltd (the First Respondent) and CBP Contractors Pty Limited & DT Infrastructure Pty Ltd (the Second Respondent) contravened s 340 of the Act.

1. According to the Applicant, he commenced employment with the First Respondent (labour hire provider) on 19 September 2023 in the full-time position of excavator operator, at the work site of the Second Respondent (host employer).[1] 

1. The ‘site’ is the ‘Yanchep Rail Extension’ project (Project), a project that will see an additional 14 km added to the Joondalup rail line in Western Australian.  The Second Respondent is required to lay rail tracks, build bridges, undertake road work integration, and develop and implement rails systems.  Typically, labour hire providers are engaged on the Project to provide supplementary skillsets for any given day.

1. On his first day of work at the site, on 19 September 2023, the Applicant made a complaint to the:

a)   Leading Hand of the Second Respondent regarding a direction to operate a tipper truck in circumstances where an excavator was not available (the Tip Truck Complaint); and

b)   Senior Recruitment Consultant of the First Respondent, Mr Batchelor (a now former employee of the First Respondent), regarding an altercation on the Second Respondent’s bus with a bus driver (the Altercation Complaint).[2] 

1. The Applicant contends that on his second day of work, 20 September 2023, Mr Batchelor contacted him by telephone and notified him that he would no longer be needed on site by the Second Respondent.[3] 

1. That the Second Respondent no longer required the Applicant was also said to have been confirmed on that same date:

a)   by an email, which was said to have explained that the Second Respondent did not require the Applicant because it required someone who could operate GPS excavators in a civil environment;[4] and

b)   in a text message that the Applicant purportedly received from personnel of the Second Respondent confirming that the Applicant had been ‘let go’ on the basis that ‘Benny superintendent had operators come free else where or maybe man isn’t required to go on dozer.. Send ur resume into admin@easttowestplantserv...’.

1. The Applicant claims that he exercised his workplace rights on raising the Tip Truck Complaint and the Altercation Complaint (Workplace Rights) and that adverse action, namely the termination of his employment, was taken by the First Respondent and the Second Respondent because the Applicant exercised his Workplace Rights.[5] 

1. Insofar as the Second Respondent is drawn into the dispute, the Applicant submits that the Second Respondent was involved, within the meaning of s 550(2) of the Act, in the First Respondent’s contraventions of s 340 of the Act. The Applicant clarified that by reason of s 550(1) of the Act, the Second Respondent was taken to have contravened s 340 of the Act.

1. The First and Second Respondent raise a jurisdictional objection to the application on the basis that the Applicant was not dismissed from his employment.  That objection has implications for the application on foot because it is accepted that a person must have been dismissed to be entitled to make a general protections dismissal dispute application.[6] Section 365 relevantly provides:

365 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.

1. Where there is a dispute about whether a person was dismissed, the Commission is obliged to determine that point before exercising its powers under s 368 of the Act to, for example, conduct a conference.[7] Therefore, and as noted, the discrete issue for determination is whether the Applicant was ‘dismissed’ from his employment within the meaning of s 386(1)(a) or/and (b) of the Act.

1. Background

1. Whilst there is some disparity in the accounts provided by the Applicant and the Respondents, essentially the Applicant worked on the Second Respondent’s site on 19 September 2023 and by 20 September 2023, the Second Respondent had informed the First Respondent that in its view, the Applicant did not have the skills to operate GPS/GNSS excavators and it still needed an excavator operator to complete work on the site.[8]

1. Four witnesses gave evidence at hearing, including the Applicant.  Mr Daniel Perkins, General Manager of the First Respondent, and Mr Batchelor gave evidence on behalf of the First Respondent.  Mr Ben Smith, Superintendent on the Project, gave evidence on behalf of the Second Respondent albeit he was employed by CPB Contractors Pty Ltd which formed part of the NEWest Alliance.

2.1      The Applicant’s evidence

1. The Applicant gave the following account of the events that unfolded over the course of 19 and 20 September 2023.

1. The Applicant states that he entered an employment contract with the First Respondent (and the Second Respondent) for the position of excavator operator on a pay rate of $49.23 per hour for 40 hours a week.[9]

1. Attached to the Applicant’s application was an email titled ‘Employee Assignment Confirmation’, which detailed, amongst other matters:

FT Civil Construction is please to present you with an opportunity for employment, and please find the scope of the works/job description for this assignment below.  In receiving this confirmation email you acknowledge your contractual obligation, as agreed in our Terms and Conditions, to pre-inform FT Civil Construction of any change of duties or workplace location in support of our statutory duty of care.  Should you have any questions or queries please do not hesitate to contact us on 1300 083 599.

…

Position
Excavator

Type
Casual employee

Client Company
CPB Downer Joint Venture – NEWest Alliance

Location
Metronet YRE – Pipidinny Rd, East of Marmion Ave

Commencement Date of Employment
19/09/2023

Estimated Period of Assignment
To review on 29/10/2023

Start Time
06:45am

Report to
Vinny Lumbaca

…
OTE
40 HOURS PER WEEK
…
Don’t forget – let us know when you’ve finished this assignment!

1. On 19 September 2023, the Applicant was on site at 6:45 AM, he carried out an induction, undertook a breath test and phoned Mr Batchelor who advised him to phone ‘Vinnie Lumbaca’, which he did.[10]  The Applicant then proceeded to wait for one hour for someone to pick him up and take him to another site.  At the other site, he reported to a gentleman by the name of ‘Paddy’.[11]

1. According to the Applicant, at the other site he was informed that there were no excavators and that he could drive a truck.[12]  The Applicant said that he advised Paddy that it had been 15 years since he drove heavy trucks.[13]  The Applicant said that he received 15 minutes of training and then proceeded to drive the truck for the day without incident.[14]

1. At the end of the shift, the Applicant caught the site bus.  Whilst about to disembark from the bus, he was talking to his son on his phone.[15]  The Applicant stated that the following interaction occurred with the bus driver:

Bus driver:      hey mate can hurry up and get the fuck off the bus.
Applicant:       calm down mate you don’t have to carry on like that, I am getting off.
Bus driver:      well hurry the fuck up I have another trip to do.
Applicant:       well you’re a friendly one aren’t you
Bus Driver:      and you can go get fucked.[16]

1. That afternoon the Applicant phoned Mr Batchelor informing him of what had taken place and that he wished to lodge a formal complaint against the bus driver with his employer.[17]  The Applicant said that Mr Batchelor advised him that he would sort something out.[18]

1. The Applicant presented to site the next day and attended the morning pre-start.[19]  However, the Applicant said he was not acknowledged and as he knew no one he contacted Mr Batchelor who advised him to hang around and he would get back to him.[20]

1. Whilst the Applicant attempted, on Mr Batchelor’s direction, to contact Mr Lumbaca, he had no success in doing so, and eventually Mr Batchelor contacted the Applicant to advise that the client no longer wanted him on site.[21]

1. The Applicant said that when he asked Mr Batchelor the reason he was no longer wanted on site, he was informed that he could not operate an excavator to the client’s satisfaction.[22]  The Applicant said that when he asked about his complaint about the bus driver, Mr Batchelor provided a vague response and it appeared that he did not know how it was being dealt with.[23]

1. The Applicant expressed that he firmly believed that the reason provided as to why he was not allowed back on site was not the real reason, because he had never had the opportunity to prove or disprove the allegation regarding the operation of an excavator.[24] 

2.2      The First Respondent’s evidence

1. Mr Perkins said that the first he heard about the issue with the Applicant was when he received a call from ‘Ben Smith’, Superintendent, who informed him that the Applicant was no longer on site as he had walked off the site on his own accord.[25]

1. Mr Smith purportedly informed Mr Perkins that the Applicant had told ‘Anthony’, a leading hand on site, that he ‘hadn’t pulled levels (on excavators) in years’ and had no real knowledge of how to use GPS on excavators.[26]  Mr Smith stated that this was concerning as this was considered high risk work and a lot of the client’s machines were GPS fitted.[27] 

1. Mr Perkins said that he followed up with Mr Batchelor for an update on the situation and was informed by Mr Batchelor that the Applicant had left site, and when asked who told him to leave, Mr Batchelor replied ‘no-one’.[28]

1. Mr Perkins said that after a couple of days Mr Batchelor received communications from the Applicant asking if he would be paid (which, according to Mr Perkins, he was).[29] 

1. Mr Perkins said that he tried to call the Applicant directly to gain more knowledge of the situation and see if he was interested in other work the First Respondent had going, but he was unsuccessful in doing so and never received a call back.[30]  Mr Perkins further explained that he did not want to harass the Applicant as it was possible he had found other work and no longer needed the First Respondent to help find him work.[31]  Mr Perkins said that he left the Applicant in the First Respondent’s system as available for work as the First Respondent did for all candidates, unless instructed (presumedly by the candidates) otherwise.[32]

1. The Applicant was said to have been maintained on the First Respondent’s system as available for work until 21 November 2023 when the Applicant advised that he no longer wished to work for the First Respondent.[33] Mr Perkins clarified that having received a copy of the Applicant’s application under s 365 of the Act, he contacted the Applicant to ensure there was no confusion of him having had his employment terminated and asked whether he was available for work – which the Applicant responded to the effect that he was not.[34]

1. It is observed that the First Respondent tendered a ‘register’ (spreadsheet) of interactions with the Applicant over the course of May 2020 until 21 November 2023. After, 20 September 2023, the Applicant was not contacted in respect of a ‘job opening’ until 16 November 2023. Further, it is observed that the Applicant’s application under s 365 was made on 11 October 2023.

1. Mr Batchelor gave evidence that the First Respondent’s client, ‘CPB & Downer’, was looking for a good trimming excavator to assist with works.[35]  Mr Batchelor said that he phone-screened the Applicant a few days before assigning him the casual contract.[36]  The casual contract (employment contract) read, in part:

Casual Employment with FT Civil Construction Pty Ltd CAN 665 995 004 (the Company) is agreed on the terms and conditions set out in this casual employment agreement, together with your Assignment Confirmation that you will be presented with prior to the commencement of any new assignment.  Also enclosed with his causal employment agreement is a Fair Work Information Statement (FWIS).  However, the FWIS is not incorporated into and does not form part of this causal employment contract. 

1. Employment

1.1 Nature of employment and commencement date (a) The Company is a labour hire business and you will be employed on a casual basis to undertake assignments with the Company’s clients.  (b) At the beginning of each assignment you will be provided with details of the assignment (Assignment confirmation).  (c) Each Assignment Confirmation represents a new offer of employment.  (d) The commencement date of your employment will be stated in your Assignment Confirmation.

1.2 Position (a) You will be employed in the position stated in your Assignment Confirmation.  (b) Your position can only be modified by the Company.  The client to whom you are assigned cannot alter your position and primary duties without prior approval from the Company.  Should your position change to that stated in your Assignment Confirmation, you must notify the Company…

2. Hours

(a) As a casual employee you will be requested to work as and when reasonably required by the Company.

(b) Your hours of work will be set out in your Assignment Confirmation.

(c) If you are unable to attend at work on any day that you have been rostered to work or if you will be late for work you must personally advise the Company / your Account Manager of your intended absence before the start of the working day or as soon as is reasonably practicable…

10. Termination Of Employment 

10.1 Termination without notice The Company reserves the right to terminate your employment without notice in the event of serious misconduct or for any other reason that enables summary dismissal at law.

10.2 Termination on notice As a casual employee the Company reserves the right to terminate you on an hour’s notice.

10.3 Effect of termination (a) on termination of employment, you must return all property of the Company in your possession (including but not limited to confidential information, keys, documents, computer files, work diaries and customer/client address lists).  (b) where you have performed work on a home computer or personal laptop or personal mobile…

1. After the phone screen, Mr Batchelor sent the Applicant a registration pack and an induction that was required to be completed for the First Respondent – the registration pack included a casual contract, employment details, bank details, superannuation preference and ‘myLeave’.[37]

1. Once the Applicant had completed the online inductions for the site, the Applicant was then sent a ‘casual assignment confirmation’ on 18 September 2023, said Mr Batchelor.

1. Mr Batchelor said that he received a call from the Applicant on his first day noting that the digger was not quite ready, but they (presumedly the First Respondent’s client) were happy to keep him busy on a HR tipper truck in the meantime.[38]  Mr Batchelor said he received a further call from the Applicant regarding the bus driver having sworn at him for taking too long getting off the bus.[39]  Mr Batchelor said that he informed the Applicant that he would contact the supervisor about it (Mr Lumbaca), which he did, but Mr Lumbaca advised Mr Batchelor that he had limited ability to take action as it was after hours – but to send in the Applicant the next day.[40] 

1. Mr Batchelor said the next day both he and the Applicant were unable to contact Mr Lumbaca and after a couple of hours the Applicant said he was sick of waiting and wanted to leave.[41]  Mr Batchelor said that he informed the Applicant that if he wanted to leave then that was okay, but ideally the First Respondent did not like candidates to ‘walk off the job’ as it was not a good look and could be unsafe.[42]

1. Mr Batchelor said that later in the day (20 September 2023), he received a call from Mr Perkins advising him that the Applicant would not be needed for the assignment as there were concerns from the client that he could not operate a GPS excavator to the required standard, which was purportedly vital for the role.[43]  Mr Batchelor said that he called the Applicant and let him know that the client did not need him back but that the First Respondent would be in touch for other upcoming work.[44]

2.3      The Second Respondent’s evidence

1. Mr Smith forms part of the team responsible for the civil construction works on the Project.[45]  He explained that labour hire personnel are engaged on the basis of the skills and qualifications needed on any given day having regard to the Project work schedule.[46]  Typically, he would contact one of the labour hire providers engaged on the Project to outline what supplementary skillsets were required for a given day.[47]

1. Mr Smith gave evidence that the NEWest Alliance does not directly employ or have contracts of employment with the labour hire candidates provided by a labour hire entity.[48]  However, it did have commercial arrangements in place with a number of labour hire providers, including the First Respondent.[49]

1. Prior to mobilising a labour hire candidate to site, the mobilisation team of the Second Respondent review the candidate’s documentation to ensure whoever is mobilised is suitable to perform the work.[50]  Mr Smith said that this included reviewing candidates’ certifications, tickets and the declarations provided by the labour hire entity.[51]  Subject to that review, once a labour hire employee arrived for the day, they undertook a site induction, performed alcohol screening and were required to undertake a supervisor observation – an on-site verification process to assess their suitability to operate plant and equipment.[52]

1. Mr Smith said that in early September 2023, the Second Respondent was organising labour for the period commencing 19 September 2023.  Part of the work required personnel to operate 35 tonne final trim batter GPS/GNSS excavators for the congested alignment works located at the Butler tie in section of the Project.[53] Mr Smith said that they required an individual to undertake work using GPS/GNSS excavators,[54] and therefore he contacted Mr Perkins to outline the specific requirements.[55]

1. In relation to the work performed by the Applicant on 19 September 2023, Mr Smith said:

a)   after the Applicant completed his site induction, he contacted Mr Anthony O’Donnell (a supervisor on the Project) and told him to pick up the Applicant and take him to his supervisor observation;

b)   prior to the supervisor observation, Mr O’Donnell relayed to Mr Smith that during the drive with the Applicant, the Applicant disclosed he had ‘not pulled levers in years’ and had not previously used a GPS/GNSS excavator and asked whether he was being thrown into the deep end;

c)   he, concerned that the Applicant would be unable to operate the GPS/GNSS excavator safely and aware that the Applicant had a ticket to operate a six wheel tip truck, decided that the Applicant could undertake a supervisor observation in the six wheel tip truck instead; and

d)   he understood that the Applicant completed the work without incident. 

1. Mr Smith said that he was advised that the Applicant did not present for work the next morning on 20 September 2023 and on receiving that information he contacted Mr Perkins and informed him that the Applicant lacked the required skills, he did not attend site on 20 September 2023 and he still needed an excavator operator to complete the work.

1. Relevant principles

1. Before considering the Applicant’s particular circumstances, the legal framework and relevant principles first warrant consideration. 

1. The Applicant asserts that he was dismissed notwithstanding having been employed on a ‘casual basis’. 

1. Section 386(1) of the Act defines what constitutes a dismissal for the purpose of Part 3-2, which concerns unfair dismissal. That section is relevant for present purposes given the Commission’s acceptance that the definition of the word ‘dismissed’ in s 386(1) is equally relevant to the meaning of the term as used in s 365 of the Act. The word ‘dismissed’ as defined in ss 12 and 386 of the Act reads:

(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.

1. There are exceptions under s 386(2) regarding when a person has been dismissed; however, those exceptions are not relevant to this case.

1. The definition of dismissal in s 386(1) of the Act has two elements, both of which have been subject to consideration. The first traverses ‘termination on the employer’s initiative’ and the second, ‘resignation in circumstances where the person was forced to do so because of conduct, or a course of conduct’. This bifurcation was explained by the Full Bench in Bupa Aged Care Australia Pty Ltd v Tavassoli (Bupa),[56] and in Lipa Pharmaceuticals Ltd v Jarouche[57] the Full Bench endorsed the principles established in Bupa in respect of s 386(1)(b). In Bupa it was said:

[47] Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:

(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.

(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.[58]

1. While a summary of the position under s 386(1) was proposed in Bupa, a later decision of the Full Bench in City of Sydney RSL & Community Club Ltd v Balgowan considered the operation of s 386(1)(a), and in doing so expressed the following about s 386(1)(b):

[10] It seems clear…that the concept of constructive dismissal is to be accommodated by s.386(1)(b) and that concept is not subsumed in s.386(1)(a).

[11] Section 386(1)(a) seems plainly to be intended to capture the case law determining the meaning of termination (of the employment relationship) at the initiative of the employer. In Mohazab the Court considered that the expression “termination at the initiative of the employer” was:

“. . . a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression ‘‘termination of employment.’’” (references omitted)[59]

1. Insofar as the Applicant was employed on a ‘casual’ basis, ‘casual’ employment is defined by ‘no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person.’[60]  The definition may be satisfied by different patterns of employment pursuant to different contractual arrangements.[61]

1. As was said in Fathalla v Gallawah Pty Ltd (Fathallah),[62]  the common law principles applicable to the termination of the employment contract with respect to ‘notice’ are equally applicable to the termination of the employment relationship.[63]  At common law, termination of the contract is commonly effected by the giving of notice and the effluxion of the period of notice.[64]  There is a requirement for such a notice to be ‘valid.’  To be valid, notice must be in accordance with the terms of the contract[65] and must be sufficiently certain in that it must specify, or make it possible to ascertain, the time when the termination is to take effect.[66]  Notice is to be construed according to how it would be understood by a reasonable person in the position of the recipient who had knowledge of the background of the dealings between the parties.[67]

1. It is also accepted in the Commission that the employment relationship is capable of persisting in the periods between a casual employee’s separate engagements[68] and sometimes not,[69] and that termination of the employment relationship may be obscure where no further shifts are offered to the casual employee.[70]  This is said to be so regardless of the absence of reciprocal rights and obligations to give legal form to a relationship of employment in the periods of time between those engagements,[71] and in circumstances where at the end of any engagement there could be no plans for a further engagement and indeed may be no further engagement at all.[72]

1. Consideration

1. Prior to the Applicant’s engagement on the Project, the First Respondent had emailed him on multiple occasions during the course of 2020 up until 2023 regarding ‘job openings’ to gauge whether the Applicant had any interest in the positions on offer.[73]  It would appear from the Applicant’s evidence and that of the First Respondent, that up until the ‘job offer’ for the Project work on 18 September 2023, the Applicant had not expressed any interest in other jobs that had been put forward by the First Respondent.  

1. The Second Respondent proposed that the employment relationship between the First Respondent and the Applicant commenced as early as 2020, when the First Respondent first advanced a job offer to the Applicant.  I do not accept the contention.  First, it is evident that the Applicant did not accept the job offer in 2020 or those that followed with the exception of the offer for work commencing on 18 September 2023.  Second, the evidence before me does not suggest that an employment contract (written or oral) existed between the parties prior to the written employment contract referred to at paragraph [31] of this decision.  It follows that on any reasonable basis I cannot be satisfied as to the proof of the contract.[74]  Third, whilst appreciating that an employment contract differs to an employment relationship and that the employment relationship may persist notwithstanding the termination of the employment contract, it is difficult to conceive in these circumstances of the establishment of an employment relationship in the absence of objective legal intent to establish an employment contract.  Neither the evidence of the Applicant nor the witnesses of the Respondent compels a finding of such intent until such time as the job offer for, and acceptance of, work commencing 18 September 2023. 

1. On 13 September 2023, the Applicant accepted casual employment with the First Respondent on the terms set out in employment contract of that same date.  The employment contract set out the contractual rights and obligations between the Applicant and the First Respondent.  It was not apparent that the employment contract had been varied at any time. 

1. The employment contract set out that the Applicant’s casual employment was:

agreed on the terms and conditions set out in this casual employment agreement, together with your Assignment Confirmation that you will be presented with prior to the commencement of any new assignment. 

1. Regarding the nature of the employment, the employment contract specified the context of the First Respondent’s business and that the Applicant would be employed on a casual basis to undertake assignments with the company’s clients.  Specifically, the employment contract provided:

(b) At the beginning of each assignment you will be provided with details of the assignment (Assignment confirmation).  (c) Each Assignment Confirmation represents a new offer of employment.  (d) The commencement date of your employment will be stated in your Assignment Confirmation. (Bold my emphasis.)

1. The employment contract further provided for the termination of employment pursuant to clause 10 of the employment contract.  In circumstances where the First Respondent sought to terminate the Applicant’s employment, it was obliged to provide an hour’s notice unless the termination of employment was grounded upon serious misconduct – in which case notice was not required.   

1. Essentially, what the Respondents appear to be contending is that when the Applicant’s assignment prematurely ended at the Project, and I note it was premature given that the Employee Assignment Confirmation provided an ‘Estimated Period of Assignment To review on 29/10/2023’, the employment relationship persisted. 

1. To further elaborate, the Second Respondent presses that based on the materials filed by the First Respondent, the Applicant was engaged on a series of casual arrangements, referred to as assignments, over the period 27 May 2020 to 21 November 2023.  In light of the content of the latest employment contract between the First Respondent and the Applicant, this, said the Second Respondent, reflected the position that the employment relationship was comprised of a series of assignments with each assignment reflecting a new contractual offer.  The Second Respondent then submitted that applying Khayam v Navitas English Pty Ltd (Khayam)[75] to these circumstances, the employment relationship is broader than just a particular assignment constituted under a particular contract.  The Second Respondent further submitted that the employment relationship comprised of a series of assignments, constituted under separate contracts, carried out by the Applicant for and on behalf of the First Respondent’s clients from time to time – such circumstances having prevailed for a number of years as at the date of the Second Respondent’s submissions.  I do not accept this submission or the factors identified by the Respondents to establish this contention.

1. First, in respect to the argument premised on Khayam, the context in which the Applicant was employed, that is by a labour hire company, is not analogous to the circumstances in Khayam where the employee in question was employed under a time limited contract to perform work for the one employer (i.e. not at the sites of multiple clients).  Khayam dealt with the issue of whether an employee engaged on a series of sequential time limited contracts was dismissed by the employer when a contract was not renewed.

1. Second, the Applicant had not engaged in a series of assignments with the First Respondent.  According to both the First Respondent and the Applicant, the Applicant had worked one assignment with the First Respondent.

1. Third, the employment contract applied to the employment of the Applicant with the First Respondent, together with the Employee Assignment Confirmation.  Each Assignment Confirmation represents a new offer of employment.  The employment contract makes it clear that employment with the First Respondent is on an assignment by assignment basis with each assignment representing a discrete period of employment. 

1. The employment contract considered in isolation does not establish an employment relationship independent of the Applicant being offered and accepting an assignment at a particular location or site.  Rather it sets the terms and conditions of employment that underpin and are subject to each assignment provided by the ‘Employee Assignment Confirmation’, the ‘Employee Assignment Confirmation’ establishing the offer of employment and the Applicant’s acceptance of that particular offer on each occasion establishing a new employment relationship.  The ‘Employee Assignment Confirmation’ states:

FT Civil Construction is please to present you with an opportunity for employment…

1. It follows that the employment relationship for each assignment was established by the ‘Employee Assignment Confirmation’ and when the assignment ended, so did the employment relationship.  The employment contract applied to each assignment offered to the Applicant and did not operate independently of the employment relationship formed when the Applicant was offered and accepted a particular assignment.  The employment contract did not guarantee that a further assignment would be offered creating a new employment relationship when an earlier assignment ended.  Rather the employment contract provided that each assignment represented a new offer of employment.

1. I therefore do not accept that the effect of the employment contract and the ‘Employee Assignment Confirmation’ was such that the employment relationship remained on foot after the Applicant’s assignment at the Project ended.  Whilst appreciative that the evidence does not support a finding that the First Respondent notified the Applicant that his employment terminated in accordance with clause 10 of the employment contract, in the context of an employment contract and ‘Employee Assignment Confirmation’ document and an employment relationship which was assignment based, a communication from the Second Respondent to the First Respondent terminating the assignment had the effect of terminating the employment relationship between the First Respondent and Applicant.

1. It is evident that the relationship between the Applicant and the First Respondent was regulated by a wholly written employment contract, which does not appear to have been varied (as observed) or otherwise was a sham or ineffective.  Therefore, the question of whether the Applicant was dismissed has been determined by reference to the circumstances that unfolded over the course of 19 and 20 September 2023 and the rights and obligations under the employment contract and ‘Employee Assignment Confirmation’.

1. Conclusion

1. For these reasons, I am satisfied and find that the Applicant was dismissed at the initiative of the First Respondent when his assignment with the Second Respondent was ended on 20 September 2023.  I have not found, insofar as it was argued, that the Second Respondent was the Applicant’s employer.

1. As the Applicant was dismissed, he is entitled to apply under s 365 of the Act for the Commission to deal with his dismissal dispute. It is therefore worth outlining s 370 of the Act, which, in setting out the pre-requisites for the making of a general protections court application, provides an overview of the next steps for the conduct of the Applicant’s application:

A person who is entitled to apply under s 365 for the FWC to deal with a dispute must not make a general protections court application (as defined in s 368(4)) in relation to the dispute unless:

(a) both of the following apply:

(i) the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute;
(ii) the general protections court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days; or

(b) the general protections court application includes an application for an interim injunction.

1. The precursor to the issuing of the required certificate under s 368(3)(a) is that the Commission must deal with the dispute by conducting a conference[76] and reach a level of satisfaction that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful.[77]

1. Finally, while I have determined the First Respondent dismissed the Applicant and therefore the Applicant is entitled to apply under s 365 of the Act for the Commission to deal with his dismissal dispute, it should be noted that the Full Court in Coles Supply Chain Pty Ltd v Milford[78] made observations of the following nature regarding s 370 of the Act and the making of a general protections court application:

·the Act establishes multiple alternate pathways for an applicant and prospective litigants;

·s 370 of the Act is to be interpreted against the background that while the Commission may determine the question of a person’s entitlement to make an application to it, this may not be conclusive; and

·this is because a Court may ultimately decline to recognise an ‘application’ or resulting certificate granted by the Commission as valid, if called upon by a respondent to determine a subsequent objection to the competency of a general protections court application under s 370 of the Act.[79] 

1. For present purposes and as a result of my determination, this matter will now be listed for conference between the Applicant and the Respondents in order to explore the possibility of resolution.

DEPUTY PRESIDENT

Appearances:

G Williams, Applicant
D Perkins for the First Respondent
J Parkinson for the Second Respondent

Hearing details:

2023.
Perth (by video):
14 December.

[1] Form F8 – General protections application involving dismissal, [3.1(1)] (Exhibit A1).

[2] Ibid [3.1(7), (11)].

[3] Ibid [3.1(15)].

[4] Ibid [3.1(16)].

[5] Ibid [3.1(20)–(21)].

[6] Coles Supply Chain Pty Ltd v Milford (2020) 279 FCR 591, 603 [54] (Coles v Milford), special leave to appeal declined in [2021] HCASL 37.

[7] Ibid 602 [51].

[8] Witness Statement of Ben Smith, [38] (Exhibit R5) (Smith Statement). 

[9] Witness Statement of Gregory Williams, 4 (Exhibit A4). 

[10] Ibid. 

[11] Ibid. 

[12] Ibid. 

[13] Ibid. 

[14] Ibid. 

[15] Ibid. 

[16] Ibid. 

[17] Ibid. 

[18] Ibid. 

[19] Ibid 5. 

[20] Ibid. 

[21] Ibid. 

[22] Ibid. 

[23] Ibid. 

[24] Ibid. 

[25] Witness Statement of Daniel Perkins, 5 (Exhibit R1). 

[26] Ibid.

[27] Ibid.

[28] Ibid.

[29] Ibid.

[30] Ibid.

[31] Ibid.

[32] Ibid.

[33] Ibid.

[34] Ibid.

[35] Witness Statement of Damien Batchelor, 6 (Exhibit R6).

[36] Ibid.

[37] Ibid.

[38] Ibid.

[39] Ibid.

[40] Ibid.

[41] Ibid.

[42] Ibid.

[43] Ibid.

[44] Ibid 7. 

[45] Smith Statement (n 8) [9].

[46] Ibid [14].

[47] Ibid [15].

[48] Ibid [16].

[49] Ibid [17].

[50] Ibid [18].

[51] Ibid.

[52] Ibid.

[53] Ibid [25].

[54] Ibid [26].

[55] Ibid [32].

[56] (2017) 271 IR 245 (Bupa).

[57] [2023] FWCFB 101. 

[58] Bupa (n 56) 268–9 [47].

[59] (2018) 273 IR 126, 129–30 [10]–[11].

[60] Fair Work Act 2009 (Cth) s 15A(1)(a). See also WorkPac Pty Ltd v Rossato (2021) 271 CLR 456.

[61] Re 4 Yearly Review of Modern Awards – Casual Employment and Part-time Employment (2017) 269 IR 125, 179 [85].

[62] [2023] FWC 2542 (Fathalla). 

[63] Ayub v NSW Trains (2016) 262 IR 60, 68–9 [24] (Ayub). In the case of a casual employee, see Barrett v Nunawading Swimming Club Inc[2021] FWC 1301, [24].

[64] Birrell v Australian National Airlines Commission (1984) 5 FCR 447, 457.

[65] Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435, 454, 469; Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 427; Visscher v Giudice (2009) 187 CLR 96, 109–10 [53].

[66] G J McCarry, Termination of Employment Contracts by Notice (1986) 60 ALJ 78, 79; Burton Group Ltd v Smith [1977] IRLR 351, 354 cited in Fardell v Coates Hire Operations Pty Ltd (2010) 201 IR 64 (Fardell).

[67] Fardell (n 66) 85 [82] and the cases cited therein; Ayub (n 63) 65–9 [11]–[24]. See also, Koutalis v Pollett (2015) 235 FCR 370, 379 [43]; Canberra Urology Pty Ltd v Lancaster[2021] FWCFB 1704, [30].

[68] Knott v MGH Employment & Training Pty Ltd[2021] FWC 2498, [33]; Trewin v S Choudhuri & A Shee [2023] FWC 1928, [67]

[69] Spinks v Co-Operative Bulk Handling Ltd[2019] FWC 2109; Micke v University of Western Australia[2023] FWC 200.

[70] See Khayam v Navitas English Pty Ltd (2017) 273 IR 44, 96–7 [127] (Khayam).

[71] Cf Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2022) 275 CLR 165, 186–7 [43]–[44] (Kiefel CJ, Keane and Edelman JJ), 234–5 [183] (Gordon J).

[72] Fathallah (n 62) [108]. 

[73] Comment Grid (Exhibit R2).

[74] John Holland Pty Limited v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451, cited in Muller v Timbecon Pty Ltd[2022] FWC 1685. 

[75] Khayam (n 70).

[76] Fair Work Act 2009 (Cth) ss 368(1), (2).

[77] Ibid s 368(3).

[78] Coles v Milford (n 6). 

[79] Ibid 607 [74]–[75]. 

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