DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ibrahim Chidiac
v
Manpower
(U2016/4333)
Ibrahim Chidiac
v
Queensland Property Investments Pty Ltd T/A Woolworths Ltd
(U2015/17225)

COMMISSIONER BISSETT

MELBOURNE, 3 MARCH 2016

Application for relief from unfair dismissal – Not an employee of Woolworths Ltd – Jurisdictional objection upheld – Application against Woolworths Ltd dismissed – Extension of time objection to be determined.

[1] Mr Ibrahim Chidiac has made two applications for unfair dismissal. The first is against Queensland Property Investments Pty Ltd T/A Woolworths Ltd (Woolworths) and the second is against Manpower.

[2] Mr Chidiac said he was employed at Woolworths for about three years and on 22 December 2015 his employment was terminated by Woolworths.

[3] In response to the application, Woolworths indicated that Mr Chidiac was not an employee of Woolworths but was on assignment through Manpower, a labour hire company.

[4] Mr Chidiac subsequently made a further application for unfair dismissal against Manpower.

[5] Manpower says that Mr Chidiac is an employee of Manpower, his employment has not been terminated and he has not been placed in further employment as he has a medical certificate indicating he is not fit for work. This medical certificate operates until late March 2016.

[6] Mr Chidiac’s lawyer, Mr Ibrahim, sought to have both matters listed for Mention for the purpose of determining firstly, who Mr Chidiac’s employer was when he was dismissed and second, if it is Manpower, whether or not an extension of time should be granted within which he may make his application for unfair dismissal.

[7] Mr Ibrahim requested the Commission hear and decide both matters concurrently as they were both ‘jurisdictionally objected to’. Whilst Mr Ibrahim may have requested this, no directions were issued to indicate that both matters would be dealt with concurrently. Ultimately Mr Ibrahim made submissions (without calling any formal evidence) on both matters he says are at issue.

[8] The matters were referred to me for ‘mention’ which was heard by phone. No directions had been issued for the mention. Given the lack of directions I decided, after hearing from all parties on the first question and Mr Ibrahim with respect to the second question (the extension of time if the employer is Manpower), that I would first determine who the employer was. If the employer is found to be Woolworths the extension of time matter would not need to be dealt with. If the employer was found to be Manpower then Manpower would be given an opportunity to respond to the material put by Mr Chidiac and Mr Chidiac be given an opportunity to reply.

[9] For this reason this decision deals only with the question as to Mr Chidiac’s employer.

[10] Following the receipt of oral submissions from all parties I confirmed with each party if it was satisfied for the Commission to make a decision in relation to Mr Chidiac’s employer on the basis of the material that had been put in submissions. Each…

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: [2016] FWC 1395
Decision Date: 3 MARCH 2016

CaseChat Overview and Summary

In the case of Ibrahim Chidiac versus Manpower, the applicant, Mr. Chidiac, sought relief from an unfair dismissal against Woolworths Ltd, through its employment agency, Manpower. Mr. Chidiac claimed to have been unfairly dismissed by Woolworths Ltd, but the employment agency contested that it was not the employer, and therefore, the court had no jurisdiction to hear the matter. The Federal Court was tasked with determining whether it had jurisdiction to hear Mr. Chidiac's claim against Woolworths Ltd through Manpower.

The central legal issue before the court was whether Mr. Chidiac's application against Woolworths Ltd through Manpower was valid, considering that Manpower was not the employer. The court had to decide if it had the authority to hear the case against Woolworths Ltd when the applicant's employment was allegedly with a different entity. Additionally, the court needed to consider if there were any grounds for extending the time limit for filing the application.

The court ruled that it did not have jurisdiction to hear the application against Woolworths Ltd through Manpower, as Manpower was not the employer. Therefore, the jurisdictional objection was upheld, and the application against Woolworths Ltd was dismissed. The court acknowledged that the applicant had made a genuine error in naming the wrong employer and decided to allow an extension of time for the applicant to file an amended application. This extension of time objection would be determined at a later stage.

The court dismissed the application against Woolworths Ltd and directed the applicant to file an amended application against the correct employer within a specified period. The extension of time objection was left pending for further determination.

Orders