Haben Gebreselassie v Australia and New Zealand Banking Group Limited (“ANZ”)

[2021] FWC 4284

[2021] FWC 4284

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Haben Gebreselassie
v
Australia and New Zealand Banking Group Limited (“ANZ”)
(U2021/3179)

COMMISSIONER CIRKOVIC MELBOURNE, 20 JULY 2021

Application for unfair dismissal remedy – jurisdictional objection upheld – no employment relationship found – application dismissed.

[1] This decision concerns an application by Miss Haben Gebreselassie (Applicant) for an unfair dismissal remedy under s.394 of the Fair Work Act (the Act). The Applicant claims she was unfairly dismissed by the Australia and New Zealand Banking Group Limited (“ANZ”) (Respondent) with the dismissal taking effect on 23 March 2021. In response to the application, the Respondent raised three jurisdictional objections.

[2] This decision concerns two of the objections; namely, whether the Applicant is an employee for the purposes of s 382(a) of the Act and whether the Applicant was dismissed at the initiative of the employer withing the meaning of s. 386 (1) (b).

[3] Following a case management conference held on 17 May 2021, where the Applicant and Respondent were self-represented, I issued directions for the filing of material. I have taken into account the material filed by the parties.

[4] With the consent of the parties the matter was heard by telephone on 9 June 2021. Evidence was given by Ms Kate Vasconcelos, Business Manager at Hays Specialist Recruitment (Australia) Pty Ltd, and Ms Catherine Velegrinis, Development Pool Leader for the Respondent. The Applicant did not provide a witness statement but relied on material filed in support of her application, including an outline of argument.

Statutory framework

[5] In order to be protected from unfair dismissal, the Applicant must have served the minimum employment period set out at s. 383 of the Act.

[6] Section 383 is contained in Part 3-2 of the Act. Together with section 382 it defines which employees are protected from unfair dismissal. Sections 382 and 383 are relevantly in the following terms:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

“383 Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer—one year ending at that time.”

[7] The Act defines dismissal at section 386:

“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.”

Issues to be determined

[8] I first need to determine whether the Applicant was employed by the Respondent. The answer to that question will determine whether the remaining jurisdictional objections need to be addressed. For the purposes of this decision, if I determine that the Applicant was employed by the Respondent, I will need to decide whether the Applicant’s employment was “terminated at the initiative of the employer.”

Background

[9] It is not in contest that the Applicant and Hays executed Terms of Engagement dated 22 August 2019 that provided for Hays to offer the Applicant “assignments as a temporary worker.” 1

[10] The Applicant was subsequently assigned to ANZ, as a Service Consultant. Pursuant to the terms of the Assignment Agreement 2 signed by the Respondent and Hays, the Applicant’s assignment period with the Respondent was said to operate between 30 September 2019 to 30 September 2020.

[11] The Applicant’s assignment “was extended once in September 2020 with a new end date of 23 March 2021” 3 recorded in a variation agreement dated 22 September 2020 between the Respondent and Hays.4 For completeness I note that the Applicant contends that the assignment period was extended until June 2021, which the Respondent denies.

[12] In a letter dated 8 April 2021, 5 Hays sent an employment separation certificate to the Applicant indicating that the assignment which began on 30 September 2019 ended on 23 March 2021. The reason given for the separation is “end of temporary assignment.”6

Submissions

[13] The Respondent submits that the Applicant was not an employee of the Respondent but was on assignment through Hays, a labour hire company and as such the jurisdiction of the Commission is not invoked. In the event of a finding that the Applicant was an employee of the Respondent, it submits that “the Applicant’s Assignment Agreement had an end date of 23 March 2021, and therefore her employment was not terminated at the employer’s initiative on 23 March 2021, but rather came to a natural end.” 7

[14] As to the elements of a valid contract of employment, the Respondent points to the following elements and submits that they are lacking in the arrangement between it and the Applicant:

“•  an intention between the parties to create a legal relationship, the terms of which are enforceable; and

•  an offer by one party and its acceptance by the other; and

•  the contract must be supported by valuable consideration which passes between the two contracting parties; and

•  the parties must be legally capable of making a contract; and

•  the parties must genuinely consent to the terms of the contract; and

•  the contract must not be entered into for any purposes which are illegal.” 8

[15] With respect to the first element, the Respondent states that the intention is judged objectively having regard to the words and conduct of the parties. It points to the terms of the Professional Services Agreement  9 between it and Hays and in particular clause 3.2 (a) that provides that Hays is engaged as a labour hire agent by providing “service provider personnel” to ANZ on a temporary basis.

[16] It also refers to clause 14 (1)(a) and (b) which states that:

“14.1 Principle/Service Provider

(a) The legal relationship between ANZ and the Service Provider is that of principal and independent contractor. Neither the Service Provider nor any employee, agent, or contractor of the Service Provider is to be deemed to be an employee, agent or partner of ANZ.

(b) Nothing in this Agreement will be taken or is intended to be taken to give rise to an employment relationship between ANZ and the Service Provider, ANZ and the Service Provider’s employees or ANZ and any contractor to the Service Provider.” 10

[17] As to the process by which candidates of Hays are selected, it submits that:

•  Hays advertise the role and identify suitable candidates. ANZ coaches attend assessment centres in an oversight capacity only; 11

•  Candidates are informed they will be employed by Hays; 12

•  Hays provides candidates with terms of engagement; 13

•  Candidates do not receive a copy of the assignment agreement between Hays and ANZ; 14

•  A Hays representative meets each labour hire worker on commencement and “conducts check-in conversations approximately every 28 days” 15

•  Upon commencement of an assignment, the labour hire worker is integrated into the host company workforce such that they are “treated similarly to ANZ employees.” 16

[18] As to the second element of a contract of employment, that the agreement should be made by one party and accepted by the other party, the Respondent points to clause 2.1 of the terms of engagement between Hays and the Applicant that states:

“Hays will offer (you) Casual Assignments as a temporary casual employee to perform Services, as advised by your consultant, for any Client of Hays on an as required basis.” 17

[19] Further, it relies on the evidence of Ms Velegrinis who states that employees of Hays do not receive a contract of employment from ANZ, but rather “they are at all time employees of Hays.” 18

[20] As to the third element for the formation of a valid contract of employment, the requirement that the contract be supported by valid consideration, it points to clause 4.7 of the terms of engagement between Hays and the Applicant which states that:

“During any Casual Assignment, Hays will pay you weekly in arrears the rate advised to you for each hour worked, less all applicable taxes required by law.” 19

[21] Further, it points to the fact that the Applicant was required to submit weekly time sheets to Hays and received pay slips from Hays which identified Hays as the employer. 20

[22] The Applicant states in her answer to question 6(b) of her Outline of argument 21 that although she understood that she was contracted “through” Hays to work at ANZ, “I am not an employee of Hays as I have never worked for the Company”22, and further that “I worked for ANZ and they are the ones responsible for this matter.”23 That said, during the course of the hearing the Applicant conceded that “I understand that I’m not an ANZ employee.”24

Consideration

[23] It was incumbent on the Applicant to adduce evidence directed at establishing that she was employed by the Respondent. In my view the evidence does not establish this.

[24] There must be an intention between the parties to create a legal relationship. The test is objective not subjective. 25

[25] Viewed objectively, I am not satisfied that there was an intention on the part of the Applicant or the Respondent to enter into legal relations with the other. Neither the Applicant nor the Respondent thought there was a contract of employment between them. The Applicant relied on material she filed in support of her Application, including her Applicant’s outline of argument and an email exchange between herself and Ms Vasconcelos.

[26] Although the Applicant did not file a witness statement, at hearing, I asked her questions regarding her understanding of the arrangement between her and the Respondent. In essence the Applicant states that she understood that she was outsourced by “a recruitment company and that I was hired by them to work at ANZ” 26 and that she understood that she was not an employee of ANZ.27

[27] The Respondent considered the Applicant to be a labour hire worker.

[28] I have considered the contractual arrangements, reproduced in part above at paragraphs 15 to 20, between Hays and ANZ and Hays and the Applicant, the terms of which sit compatibly with my conclusion. In this case, none of the elements necessary for the formation of a contract are present. There was no offer of employment by ANZ to the Applicant, or acceptance by her of such an offer and there has been no direct payment made to the Applicant by ANZ in return for her labour.

[29] Further, the arrangements in place have not been challenged by the Applicant until the cessation of the arrangement. To the contrary, the unchallenged evidence of Ms Catherine Velegrinis is that the Applicant and Ms Velegrinis, engaged in a series of communications designed to assist the Applicant to fulfil the requirements of ANZ to enable the Applicant to become a permanent employee of ANZ. 28

[30] I am therefore satisfied that there is no employment relationship between the Applicant and the Respondent. That being the case, it is unnecessary for me to determine whether the Applicant’s employment was terminated at the initiative of the Respondent. For completeness, I note the Applicant’s submission that the terms of the assignment had been extended until June 2021. Given my finding as to the Applicant’s employment status with the Respondent, it is not necessary for me to make a finding as to this submission. The Applicant’s application for unfair dismissal is therefore dismissed.

COMMISSIONER

Appearances:

Ms H Gebreselassie, on her own behalf

Ms L Anderson, of Counsel for the Australia and New Zealand Banking Group Limited (“ANZ”)

Hearing details:

9 June 2021, via telephone

Final written submissions:

Respondent, 6 May 2021

Applicant, 13 May 2021

Printed by authority of the Commonwealth Government Printer

<PR731867>

 1   Annexure KV01, Witness Statement of Kate Vasconcelos dated 5 May 2021

 2   Annexure CV03, Witness Statement of Catherine Velegrinis dated 5 May 2021

 3   Witness Statement of Catherine Velegrinis dated 5 May 2021 [14]

 4   Annexure CV04, Witness Statement of Catherine Velegrinis dated 5 May 2021

 5   Annexure KV05, Witness Statement of Kate Vasconcelos dated 5 May 2021

 6   Ibid

 7   Respondent’s outline of submissions, [3b]

 8   Respondent’s outline of submissions [13]

 9   Annexure CV01, Witness Statement of Catherine Velegrinis dated 5 May 2021

 10   Annexure CV01, Witness Statement of Catherine Velegrinis dated 5 May 2021 [14]

 11   Witness Statement of Kate Vasconcelos dated 5 May 2021 [10]

 12   See clause 2, Annexure CV01, Witness Statement of Catherine Velegrinis dated 5 May 2021

 13   Annexure KV01, Witness Statement of Kate Vasconcelos dated 5 May 2021

 14   Witness Statement of Catherine Velegrinis dated 5 May 2021 [13]

 15   Respondent’s outline of submissions [28]

 16   Respondent’s outline of submissions [30]

 17   Attachment 2, Respondent’s Form F3, Employer Response to unfair dismissal application

 18   Witness Statement of Catherine Velegrinis dated 5 May 2021 [12] & Annexure CV02

 19   Respondent’s outline of submissions [49]

 20   Transcript of proceedings, 9 June 2021, PN304

 21   Applicant’s Outline of argument, page 22

 22   Ibid

 23   Applicant’s Outline of argument, page 22

 24   Transcript of proceedings, 9 June 2021, PN294

 25   Damevski v Giudice & Ors [2003] FCAFC 252 [95]

 26   Transcript of proceedings, 9 June 2021, PN280

 27   Ibid PN294

 28   Ibid PN214-215