Jessica Ibbett v Rio Tinto

[2025] FWC 250

[2025] FWC 250

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Jessica Ibbett
v

Rio Tinto

(C2024/8259)

DEPUTY PRESIDENT DOBSON BRISBANE, 29 JANUARY 2025

Application to deal with contraventions involving dismissal – jurisdictional objection – whether there was a “dismissal” within the meaning of s.386 of the Fair Work Act 2009 – not an employee – no jurisdiction to determine Applicant’s claim – application dismissed

1. Ms Jessica Ibbett (Ibbett) has filed a general protections involving dismissal application (Application) under s.365 of the Fair Work Act 2009 (Act) with the Fair Work Commission (Commission). The Respondent to the Application is Rio Tinto Aluminium Limited (Rio Tinto).

1. The Respondent raises a jurisdictional objection to the Application, namely, that Ms Ibbett was not employed by Rio Tinto and was therefore not dismissed by Rio Tinto within the meaning of s.386 of the Fair Work Act 2009 (Act). This decision concerns this jurisdictional objection.

1. An application under section 365 of the Act can only be made by, or on behalf of, a person who has been ‘dismissed’. A person has been dismissed if their employment has been terminated on the initiative of the employer or they resigned but were forced to do so because of conduct by the employer.[1]

1. It is uncontested and I so find that Ms Ibbett was engaged by labour hire provided, McArthur at Cape Kids Kindergarten. It is uncontested and I so find that Rio Tinto was not Ms Ibbett’s employer[2] and therefore could not dismiss her within the meaning of s.386 of the Act. I therefore dismiss her application. My reasons follow.

Background

1. Parties were provided with an opportunity to file submissions and materials upon which they intended to rely. Parties also filed a statement of agreed facts. It was uncontested that:

a.   Ms Ibbett was not employed by the Respondent/Rio Tinto;

b.   Ms Ibbett was engaged by a labour hire provider “McArthur” and

c.   Ms Ibbett’s employment with McArthur came to an end on 19 November 2024.

1. Ms Ibbett’s present application was made against Rio Tinto. In addition to the agreed statement of facts, Ms Ibbett filed a statement in which she acknowledges from the beginning of her engagement at Cape Kids that she was aware she was employed by McArthur. I note that the Commission may have power to correct or amend an application however that power does not empower the Commission to create a new application.[3]

1. Neither Ms Ibbett nor Rio Tinto submitted any evidence or basis upon which any findings could be made establishing any legal rights, obligations or relationship in existence between Ms Ibbett and Rio Tinto.[4] Neither party brought any evidence or argument before the Commission to establish a basis upon which the Commission could find that the totality of the relationship between Ms Ibbett and Rio Tinto might result in a finding that Rio Tinto was Ms Ibbett’s employer.[5] To the contrary the statement of agreed facts acknowledged McArthur solely as Ms Ibbett’s employer.[6]

1. The parties agreed that given there were no contested issues in respect of the jurisdictional objection, the matter could be heard on the papers.

1. I therefore find that Rio Tinto was not Ms Ibbett’s employer and therefore could not dismiss her within the meaning of s.386 of the Act.

Order

1. Given that I have found that Ms Ibbett was not “dismissed” by the Respondent within the meaning of s.386 of the Act, the Commission has no jurisdiction (or power) to proceed any further with Ms Ibbett’s case. I therefore order that the application for the Commission to deal with a general protections dispute involving dismissal, matter number C2024/8259 made by Ms Ibbett on 19 November 2024 is dismissed.

DEPUTY PRESIDENT

[1] Fair Work Act 2009 (Cth) ss.12 and 386.

[2] Statement of Agreed Facts filed by the parties at [1]-[2].

[3] Djula v Centurion Transport Co Pty Ltd[2015] FWCFB 2371; Narayan v MW Engineers Pty Ltd [2013] FWCFB 2530

[4] Mr Travis Cording v Schneider Electric (Australia) Pty Limited[2024] FWC 2714 upheld on appeal [2024] FWCFB 462.

[5] Ibid.

[6] Statement of Agreed Facts filed by the parties at [1]-[2].

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