James Longar Akol v The Trustee For LS Trust

[2024] FWC 940

[2024] FWC 940

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

James Longar Akol
v

The Trustee For LS Trust

(C2023/7484)

DEPUTY PRESIDENT EASTON SYDNEY, 11 APRIL 2024

Application to deal with contraventions involving dismissal – jurisdictional objection – not an employee who was dismissed – casual employment – labour supply – decision by host organisation that the applicant was no longer required at a particular site – other work offered at other sites – express terms of contract of employment – no dismissal.

1. Labour Solutions (NSW) Pty Ltd ATF LS Trust is a labour supply company that engages its labour on a casual basis. Mr James Akol has been employed by Labour Solutions from time to time and at different locations since 2021. Between March 2022 and March 2023 Mr Akol did not work for Labour Solutions at all and was instead employed directly by one of Labour Solutions’ clients. Mr Akol resumed direct employment with Labour Solutions in March 2023 starting at a client’s worksite in Rosebery. By November 2023 Mr Akol was working at a different site for the same client in the suburb of Tallawong.

1. On 8 November 2023 Labour Solutions’ client decided that it did not require Mr Akol’s labour any more at the Tallawong site. Other employees were also taken off this site at the same time.

1. Mr Akol said that when he was told by the client that he was not required at the site, he was bullied and treated inappropriately.

1. Mr Akol was then offered other work by Labour Solutions at other sites, but he did not take up those offers.

1. Instead, Mr Akol made an application to the Fair Work Commission under s.365 of the Fair Work Act 2009 (Cth). Mr Akol claims that he was dismissed from his employment with Labour Solutions and that the dismissal contravened the general protection provisions of the Act.

1. Labour Solutions maintains that Mr Akol was never dismissed.

1. For the reasons that follow I find that Mr Akol was not dismissed, and his general protections claim cannot continue.

The Commission’s Jurisdiction

1. The Fair Work Commission can deal with applications under s.365 of the Act by way of conciliation or mediation under s.368. If the Commission is satisfied that all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful, it can issue a certificate under s.368(3). Section 370 imposes a substantial restriction upon applicants by preventing applicants from making a general protections application to a Court unless the Commission has issued a certificate under s.368(3)(a) in relation to the dispute.

1. The Full Court in Coles Supply Chain v Milford [2020] FCAFC 152 at [51], (2020) 300 IR 146 (“Milford”) found that the Commission’s power to deal with a dispute under s.368 is only enlivened if an application is properly made under s.365. When a jurisdictional objection is raised, the Commission must determine whether the application was properly made, which might include determining whether an applicant was actually dismissed from their employment.

1. The Full Bench in Lipa Pharmaceuticals v Jarouche[2023] FWCFB 101 at [23], (2023) 324 IR 375 at 382-3 observed by way of obiter:

“As earlier stated, the Commission conducted a conciliation conference in respect of Dr Jarouche’s application prior to the determination of Lipa’s jurisdictional objection, with Lipa’s consent. This involved the exercise of the Commission’s functions and powers under s 368(1). This should not have occurred since it was inconsistent with the Full Court’s command in Milford as set out in 4 above. Where the respondent to a s 365 application contends, in its response to the application or otherwise, that the application was not validly made because the applicant was not dismissed, this must be determined prior to the Commission “dealing” with the dispute under s 368 including by conducting a conciliation conference.”

“A person who has been dismissed”

1. Mr Akol only has capacity to make a claim if he is “a person who has been dismissed” (per s.365(a)). “Dismissed” is defined in s.12 of the Act by reference to s.386. Section 386 is in the following terms:

“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) ….

1. The high point of Mr Akol’s argument was the following submission:

“I was promised to be given a job and as well as a feedback from Tallawong site in relations to my dismissal but all in vain.

However, for labour Solutions to have taken that long time without answers nor a job, I called and told them that I considered silence of my matter as a breach of contract and a fail of duty and responsibility to protect my employment rights and job security based on employment law and as well as zero tolerance to work bullying. When I quote, “silence”, this means it took Labour solutions quite a while to be back to me. I meant about month.”

1. Mr Akol’s reference to “a long time without answers or a job” is a reference to the fact that he had not secured more work with Labour Solutions as quickly as he wanted.

1. However, he finished work at Tallawong on 8 November 2023 and was offered work on 20 November 2023 at Hunters Hill. Mr Akol did not obtain this new work as he was too slow to accept the offer.

1. On 23 November 2023 Mr Akol spoke to Ms Samantha Walsh, who has been the Chief of Human Resources for Labour Solutions since July 2020. Mr Akol accused Labour Solutions of breaching his contract by not offering him more work. Ms Walsh spoke to Mr Akol about Labour Solutions’ new labour management computer platform and they both agreed that Mr Akol would be added to their system.

1. Ms Walsh sent Mr Akol an email later that day to follow up on the issues they discussed. Ms Walsh’s email included the following:

“We reached out to you this morning regarding a new platform for Job notices to see if you are still looking for work and would like to become a part of this new platform.

With Labor hire, you are employed as a casual worker. We can only offer jobs based on what is requested from our clients. We cant just send you somewhere, as much as we would like to as you are a valued employee of Labor Solutions.

1. Two days later, Mr Akol made his application under the general protection provisions.

Consideration

1. Mr Akol was employed on a casual basis. He worked for Labour Solutions from 2021 to 2023 for different clients at different locations. Labour Solutions offered him work when its clients needed labour, Mr Akol accepted or rejected work depending on his own availability and how much work he was doing for others. Consistent with this arrangement, Mr Akol did not work at all for a period of 12 months because he did not make himself available to work for Labour Solutions.

1. A written contract was prepared and signed when Mr Akol returned from a long period away. The terms of the written contract included:

   “2.4 The Employee acknowledges that the Employer is engaged in the business of labour hire and:

   (a) the Employer may, in its sole and absolute discretion, place the Employee in work with a host organisation with whom the Employer has an existing arrangement or agreement for provision of labour hire;

   (b) the Employer may, in its sole and absolute discretion, withdraw or otherwise alter the placement of the Employee with a host organisation at any time;

   (c) the Employee will at all times remain employed by the Employer during any placement and will not be an employee of the host organisation where he/she is placed to work;

   (d) the Employee’s location of work will regularly vary depending on the place of business(es) of the host organisation where the Employee is directed to work and the Employee is paid his/her remuneration package in consideration of such varying placements.”

1. Therefore, the only finding available on the evidence is that the terms of Mr Akol’s casual employment allowed Labour Solutions to place him with different “host organisations” from time to time at its discretion. The client’s work at the Tallawong site was one such “place of business(es) of the host organisation where the Employee is directed to work”.

1. As the Full Bench in Construction, Forestry, Maritime, Mining and Energy Union v Noorton Pty Ltd T/A Manly Fast Ferry[2018] FWCFB 7224 observed:

“[20] A casual employee has no firm advance commitment from the employer to continuing and indefinite work according to an agreed pattern of work. Nor does a casual employee provide a reciprocal commitment to the employer. Irregular work patterns, uncertainty, discontinuity, intermittency of work and unpredictability are the usual manifestations of an absence of a firm advance commitment.”

[Footnotes omitted]

1. The Full Bench in Shortland v Smiths Snackfood Co Ltd[2010] FWAFB 5709 at [8]-[13], (2010) 198 IR 237 at 240-1 (“Shortland”) considered the nuanced distinction between periods of “service” as a casual employee and periods of “employment” as a casual employee.

1. In Shortland the Full Bench observed that “it is common for a casual employee to transition between a period in which their engagements with a particular employer are intermittent and a period in which their engagements are regular and systematic and vice versa” (at [10]). The Full Bench were considering whether Mr Shortland had served the minimum employment period and observed that some periods of service as a casual employee might be regular, systematic and so on, and count towards the minimum employment period, and that some periods of service as a casual employee might not count (at [12]). This distinction is relevant for present purposes because it illustrates how casual “employment” might change from time to time as individual employees move from intermittent to regular periods of “service” during the one unbroken period of employment.

1. Crucially for Mr Akol, the cessation of work at Tallawong did not terminate the ongoing employment relationship between him and Labour Solutions. It started a period where Mr Akol did not perform any work for Labour Solutions’ clients, which fitted comfortably within the casual employment contract and arrangements between the parties.

1. I suspect that the real source of Mr Akol’s concern is the decision by the host organisation to end Mr Akol’s time at its site at Tallawong. Mr Akol claimed that he was bullied by the client’s personnel and expected Labour Solutions to take action about this alleged bullying. None of these matters are relevant to the specific question I must decide.

1. For these reasons I find that Mr Akol was not dismissed from his employment with Labour Solutions and I have made a separate order dismissing his application (PR773408).

DEPUTY PRESIDENT

Appearances:

J Akol, Applicant
J Rippon and C Welsh for the Respondent

Hearing details:

2024.
Sydney (By Video using Microsoft Teams)
March 7.

Printed by authority of the Commonwealth Government Printer

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