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.

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.

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.

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.

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

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.

Labour Solutions maintains that Mr Akol was never dismissed.

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

The Commission’s Jurisdiction

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.

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…

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: [2024] FWC 940
Decision Date: 11 APRIL 2024

CaseChat Overview and Summary

In this case, the applicant, James Longar Akol, lodged an application with the Fair Work Commission (FWC) under section 365 of the Fair Work Act 2009, claiming that his employment with Labour Solutions (NSW) Pty Ltd ATF LS Trust, a labour supply company, had been unfairly dismissed. Mr Akol argued that he was bullied by the client’s personnel and that Labour Solutions failed to address his concerns, which he perceived as a breach of his employment rights. Labour Solutions maintained that Mr Akol was never dismissed, as he was a casual employee and the decision not to require his services at a particular site was a standard part of his employment arrangement.

The central legal issue before the FWC was whether Mr Akol had been dismissed within the meaning of the Act, which would entitle him to pursue a general protections claim. The FWC considered the definition of "dismissed" under section 386 of the Act, which includes termination on the employer’s initiative or forced resignation due to employer conduct. Mr Akol’s argument hinged on whether his non-availability for work at other sites after being removed from the Tallawong site constituted a dismissal. Labour Solutions argued that since Mr Akol was employed on a casual basis, the decision by the client to not require his services at Tallawong did not equate to a dismissal.

The FWC determined that Mr Akol was not dismissed because his employment was always subject to the terms of the casual employment contract, which allowed Labour Solutions to place him with different clients at its discretion. The contract explicitly stated that the employer could withdraw or alter the placement of the employee at any time, and Mr Akol’s location of work would vary based on the client’s needs. The cessation of work at Tallawong did not terminate his employment but rather initiated a period where Mr Akol did not perform any work for Labour Solutions, which was consistent with his casual employment terms.

In conclusion, the FWC found that Mr Akol had not been dismissed, as the decision by the client not to require his services at Tallawong did not amount to a termination of his employment. The FWC dismissed the application, holding that Mr Akol had not satisfied the criteria for a general protections claim.

Orders