Jesse Payne v Sigma Company Limited
[2022] FWC 933
•27 APRIL 2022
| [2022] FWC 933 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
Section 365 - Application to deal with contraventions involving dismissal
Jesse Payne
v
Sigma Company Limited
(C2022/622)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 27 APRIL 2022 |
Application to deal with contraventions involving dismissal – labour hire – whether dismissed - no dismissal by host business - application dismissed
On 19 January 2022 Jesse Payne (Mr Payne or the applicant) made a general protections application to the Commission under s 365 of the Fair Work Act 2009 (FW Act) alleging contraventions of the FW Act.
Mr Payne alleges that he was dismissed by Sigma Company Limited (Sigma or the respondent) on 12 January 2022 in contravention of his workplace rights.
Sigma oppose the application. It raises a jurisdictional issue. It contends that it did not dismiss Mr Payne.
The decision of the Full Court of the Federal Court of Australia in Coles Supply Chain Pty Ltd v Milford[1] requires the Commission to determine a dispute about the fact of a dismissal under s 365 of the FW Act before the Commission can exercise powers conferred by s 368. It is thus necessary to determine the jurisdictional issue for Mr Payne’s application to proceed.
I issued directions on 11 March 2022.
By consent, the parties agreed that the jurisdictional issue be determined on the papers.[2]
Materials in support were filed by both Mr Payne and Sigma. These included:
Statement of Jesse Payne (applicant), and further Statement in Reply of Mr Payne;
Statement of Alan Michael Hutton (State Distribution Centre Manager SA and NT, Sigma) and further Statement in Reply of Mr Hutton;
Statement of Robert Chappelle (Branch Manager SA, Skill Hire); and
Statement of Guy Tracey (Human Resources Business Partner, Sigma).
I take into account all materials before the Commission. As no party sought to cross examine on the witness statements filed, I admit those statements into evidence as if they were sworn.
Facts
Sigma is a pharmaceutical manufacturer and operates a pharmacy distribution centre in suburban Adelaide, South Australia.
From April 2021, Mr Payne worked at the distribution centre as a casual general warehouse worker (a pick-packer on the decanting station).
Persons working in the distribution centre included those directly employed by Sigma as well as labour hire employees whose services were provided to Sigma by a labour hire agency, Skill Hire WA Pty Ltd (Skill Hire).
The arrangement between Sigma and Skill Hire was an arms-length commercial relationship for the supply of labour that had existed since 2016.
Mr Payne entered into a casual contract of employment with Skill Hire dated 9 April 2021.[3]
On 13 April 2021 Mr Payne was placed by Skill Hire to work at Sigma’s distribution centre.[4]
Mr Payne did so continuously until 12 January 2022.
On 12 January 2022 Mr Hutton (of Sigma) informed Mr Chappelle (of Skill Hire) that Sigma no longer required the services of Mr Payne and wished to end the placement.
Mr Chappelle then spoke to Mr Payne and advised that his placement at Sigma was at an end and that he (Mr Payne) should inform Skill Work if he sought to be placed by them in other work.
Final payments were made to Mr Payne by Skill Hire.[5]
Mr Payne considered that the reason for his placement being ended was unfair and unlawful. He commenced these proceedings a week later (19 January 2022).
Mr Payne remains a casual employee on the books of Skill Hire.
Consideration
Section 365 of the FW Act 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.”
Section 365 requires a dismissal to have occurred as a jurisdictional fact. “Dismissal” for these purposes (and other purposes of the FW Act) is defined in s 386(1), which provides:
“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.”
Dismissal of a person on an employer’s initiative requires that person to have been employed by that employer under a contract of employment between that person and the employer.
Thus, whilst a labour hire worker, whether as an employee or independent contractor, is covered by the general protections provisions of the FW Act, an application under s 365 is within jurisdiction only if the labour hire worker is employed by the entity that dismissed them.
Mr Payne was not employed by Sigma. He was at all material times employed by Skill Hire under an orthodox triangular labour hire arrangement. Whilst it was Sigma that required Skill Hire to end his placement at their distribution centre, this was not an act of dismissal by Sigma because Sigma was not Mr Payne’s employer.
As Sigma did not employ Mr Payne it could not have and did not dismiss him. Not having dismissed Mr Payne, the application under s 365 alleging that Sigma unlawfully dismissed Mr Payne has no jurisdictional basis and must be dismissed.
Although not argued by Mr Payne, I have considered whether his application is within jurisdiction on the basis that Mr Payne was a “prospective employee” of Sigma. Sigma submit that he was not.
In general terms, a “prospective employee” of a prospective employer is covered by the general protections provisions of the FW Act.
However, in this matter there are two difficulties with this proposition.
Firstly, the evidence of Mr Payne[6] that he had discussions with an un-named supervisor (presumably of Sigma) that his job was secure and that he was a candidate for a full-time position once one became available is contested[7] and, in any event, does not establish that he was a “prospective employee” in the sense required by the FW Act. A person is not a “prospective employee” simply because a mere possibility of future employment exists. It requires negotiation in some form for a specific position to be underway.[8]
Secondly, even if Mr Payne was a prospective employee, he was not dismissed from as no employment relationship with Sigma had been entered into let alone terminated by Sigma. The notion of being dismissed from employment whilst only a prospective employee (that is, yet to be employed) is nonsensical.
Conclusion
As Mr Payne was not employed by Sigma he was not dismissed by Sigma. His work placement at Sigma was brought to an end by his labour hire employer on Sigma’s request. Mr Payne has a genuine sense of grievance about his placement being ended, but it was not, in the required legal sense, a dismissal by Sigma.
It follows that application C2022/602 does not invoke the Commission’s jurisdiction. It cannot proceed further. It must be dismissed.
An order[9] giving effect to this decision is issued in conjunction with its publication.
DEPUTY PRESIDENT
Final written submissions:
Mr Payne – 13 April 2022
Sigma Company Limited – 7 April 2022
[1] [2020] FCAFC 152
[2] Consent advised at directions hearing 11 March 2022 and confirmed in email correspondence 22 April 2022
[3] Statement of Robert Chappelle Annexure A; Statement of Guy Tracey paragraphs 6 and 7 Annexure 1
[4] Statement of Robert Chappelle Annexure B
[5] Pay summaries at Statement of Alan Michael Hutton Annexure A
[6] Statement of Jesse Payne paragraph 10
[7] See Statement in reply of Alan Hutton paragraphs 5 and 6
[8] Vij v Cordina Chicken Farms Pty Ltd (2012) 222 IR 91
[9] PR740596
Printed by authority of the Commonwealth Government Printer
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