Jim Dimitriou v Premium Staffing Solutions Pty Ltd T/A Premium Staffing Solutions

[2014] FWC 5651

[2014] FWC 5651

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jim Dimitriou
v
Premium Staffing Solutions Pty Ltd T/A Premium Staffing Solutions
(U2014/6617)

COMMISSIONER BLAIR BRISBANE, 20 AUGUST 2014

Application for relief from unfair dismissal.

[1] An application was lodged with the Fair Work Commission (the Commission) by Mr Jim Dimitriou (the Applicant) under s394 of the Fair Work Act 2009 (the Act) for unfair dismissal remedy with the respondent to the application being Premium Staff Solutions Pty Ltd t/as Premium Staffing Solutions (the Respondent). An objection to the Commission having jurisdiction to hear the matter was lodged by the Respondent.

[2] The Respondent has raised two objections. The first objection is in relation to the qualifying period in accordance with section 383 of the Act, as it relates to a small business employer as well as Applicant’s period of service and qualifying period in accordance with section 384(2)(a)(i) and (ii) of the Act. The second objection is in relation to whether or not the termination was at the instigation of the Respondent.

[3] In relation to the first objection, sections 383 and 384 of the Act state:

383 Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer—one year ending at that time.

384 Period of employment

(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

(2) However:

(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:

(i) the employment as a casual employee was on a regular and systematic basis; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and

(b) if:

(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and

(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and

(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;

the period of service with the old employer does not count towards the employee’s period of employment with the new employer.

[4] In dealing with the matters before the Commission there was an agreement signed by the Applicant in November 2012. It is headed the Casual Employment Agreement. Although it was signed by the Applicant it has no date, nor was it signed by the Respondent. Ms Chee, on behalf of the Respondent, stated in her evidence that it was an oversight. She stated that there were a number of documents signed on that day by the Applicant and she would countersign those documents, but did not countersign this casual employment agreement. The casual employment agreement says in part at Point 1.1:

Premium making reasonable attempts to place the candidate in assignments suitable to the candidate’s qualifications and experience with clients as Premium is able to arrange in its absolute discretion from time to time.

[5] The Applicant did not commence employment until 6 January 2013 with a client of the Respondent. The Applicant worked there on the Respondent’s client’s premises for approximately 15 months and finished on 7 April 2014 when he was advised that he was no longer required to work for the client. The Applicant stated that he worked on average 38 hours a week for 15 months, save for the odd day that he had off sick or personal leave. During that period there was very little contact with the Respondent.

[6] One may argue that, although the Applicant was not an employee of the Respondent’s client, but an employee of the Respondent and worked at the client for a period of 15 months on a basically average 38 hour week, the Applicant’s work may fall within work on a regular and systematic basis because the Respondent used their discretion to allow the Applicant to continue to work at their client’s premises. If the Applicant was working directly for that company there would be no issue; it would be regular and systematic work and therefore would attract his ability to be able to make a claim under the Act.

[7] However, in accordance with section 384(2)(a)(ii) of the Act, “during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the Respondent on a regular and systematic basis”, it the Commission’s view that the agreement between the parties has not changed, although the Applicant’s representative states that it has changed. There is nothing changed in the agreement that requires the Respondent to provide the Applicant with ongoing employment, nor does it alter his status as a casual employee. The mere fact that there was a gap between when the Applicant signed the contract and when he commenced with the Respondent’s client does not alter the contract of employment. Point 1.2 of the contract of employment states:

The candidate agrees that Premium has no obligation to provide paid employment for the candidate at any time. An assignment is a temporary arrangement between Premium, as a casual employment agency, and the candidate, to provide the candidate’s services to clients of Premium on such terms and conditions as Premium is able to negotiate with its clients from time to time.

[8] That arrangement was still in place as of 7 April 2014. The document signed by the Applicant identifying that he was a casual employee states that he could not have had any reasonable expectation of ongoing employment with the Respondent on a regular and systematic basis given that he was a casual employee. It was at the sole discretion of the Respondent as to where he would be placed from time to time and he accepted the fact that any assignment would be a temporary arrangement between the Respondent, as a casual employment agency, and the candidate.

[9] The Commission therefore determine that the Respondent is not able to bring a claim under the Act as he fails to meet section 384(2)(a)(ii).

[10] The second objection by the Respondent, whether or not there was a termination at the instigation of the employer, is irrelevant, in the Commission’s view, given that the Applicant does not meet the qualifying provisions under the Act.

[11] Accordingly, this matter is dismissed.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR554414>