Julia Ponte v Hays Specialist Recruitment (Australia) Pty Limited and National Australia Bank Limited
[2023] FWC 3110
•13 DECEMBER 2023
| [2023] FWC 3110 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Julia Ponte
v
Hays Specialist Recruitment (Australia) Pty Limited
and
National Australia Bank Limited
(C2023/4144)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 13 DECEMBER 2023 |
Application to deal with contraventions involving dismissal – jurisdictional objection – whether the applicant was dismissed – application dismissed
Ms Julia Ponte made an application under s 365 of the Fair Work Act 2009 (Cth) (Act). Ms Ponte alleges that she was dismissed in contravention of the general protections provisions in Part 3-1 of the Act. The application has been made against both Hays Specialist Recruitment (Australia) Pty Ltd (Hays) and National Australia Bank Limited (NAB).
The respondents each object to the application on the basis that Ms Ponte was not dismissed.
Ms Ponte did not file a witness statement with the Commission however she provided oral evidence during the hearing of the matter.
For the reasons that follow, I find that Ms Ponte has not been dismissed within the meaning of s 386(1) of the Act. Accordingly, Ms Ponte’s application is dismissed.
Background
Hays operates a labour hire and recruitment business.[1] It contracts with its clients (other businesses) to supply labour. Ms Ponte commenced employment with Hays on 9 August 2022 on a casual basis, pursuant to Terms of Engagement.[2]
On 15 November 2023 Ms Ponte was offered a casual assignment at NAB on a temporary basis with a commencement date of 13 December 2022.[3] Ms Ponte’s roles with NAB were as follows:
13 December 2022 – Ms Ponte commenced in a ‘Servicing Advisor role’ with Ubank (a subsidiary of NAB).
10 January 2023 – Ms Ponte commenced in the role of ‘Personal Direct Servicing Advisor’ with an anticipated assignment end date of 13 June 2023. On 3 May 2023 the assignment was extended to an anticipated end date of 13 September 2023, unless ended earlier in accordance with the Terms of Engagement.
Ending of assignment
On 22 June 2023, Ms Ponte’s manager at NAB (Marie Chrisopoulos) contacted Mr Alexander Ng (Senior Recruitment Partner, NAB Enterprise Solutions at Hays) and advised him that Ms Ponte had made two non-compliant telephone calls, first on 19 June 2023 and again on 20 June 2023. As this posed a significant risk to NAB’s business, Ms Chrisopolous instructed Mr Ng to end Ms Ponte’s assignment to NAB.
Mr Ng’s evidence is that he attempted to contact Ms Ponte by telephone but was unable to reach her. He says that he sent Ms Ponte a text message asking her to call him back urgently. He also sent an email to Ms Ponte as follows:
I tried calling you earlier but was not able to reach you. NAB has advised that have been multiple uncompliant calls which pose significant risk to the business. Therefore your assignment is ending effective immediately today 22/06/2023. Please log off from the computer immediately and submit your last timesheet by COB today. Our @NAB Contingent Workforce will assist in offboarding. Our team will provide clear instructions on how to return your laptop via registered post, please provide us with the tracking reference number. If you would like to speak further, please reach out.
Later that day Ms Ponte telephoned Mr Ng and told him that she was only aware of one non-compliant call. Mr Ng says that he advised Ms Ponte that NAB’s decision to end her assignment remained unchanged.
Ms Ponte then sent an email to Mr Ng which relevantly provided as follows:
I would like to get clarification as to why my contract was terminated rather than delivered a warning.
You stated that I delivered several non-compliant calls. I was only ever informed of one non-compliant call which was yesterday morning. There is an email record of this meeting by my team leader shortly after. If there were several, they must of all happened in the last 24 hours.
As I have worked for NAB since the 12th of December, 2022. This means NAB has been my employer for over 6 months with consistent full-time hours being made available to me. This puts my worker’s rights equivalent to that of a full-time employee. In this case, I should have been given a written warning and a progress plan of sorts.
I trust you are going to do as you said and you put this towards the employee for comment. Should I hear nothing from you, I will accept it as a no comment from the employee and will take this matter further elsewhere.
Alternatively, please correct me if anything I have written above is incorrect.
On 28 June 2023 Mr Ng sent an email in response to Ms Ponte, which relevantly provided as follows:
In response to your email. Your contract with Hays was not terminated. Your temporary assignment with NAB was ended for performance reasons as mentioned. However you still remain engaged by Hays and we are ready and willing to find you an alternative casual assignment. If you can send me a copy of your updated CV I can put you in contact with a consultant to see what other casual assignments are available.
In terms of the performance issues, we are advised that you had 2 non-compliant calls.
·You were advised of the first non-complaint call during your coaching session with your team leader on the 19/06/2023. It was a compliance breach due to the banker not leaving an authentication trail to capture this information.
·The second non-compliant call was raised with your team leader during your evaluation on 20/06/2023, likewise no authentication trail notes were left during the call.
Due to this occurring twice for the same compliance breaches this has led NAB to direct us to end your assignment for these performance issues.
As mentioned above your employment has not been terminated by Hays. Your temporary assignment has been ended at the direction of our client but you remain engaged by Hays and if you can send me your updated resume we can look for alternative casual assignments for you.
On 5 July 2023 a Hays consultant sent Ms Ponte the following text message:
Currently recruiting for Call Centre advisors to work on an initial 3 month contract for the council in Camberwell. Monday to Friday, 9 to 5, paying $34.79 + Super. 100% office based. Reply YES if…
Ms Ponte filed her application with the Commission on 13 July 2023.
On 15 August 2023 Mr Ng sent a further email to Ms Ponte:
Hope you are well. Please note that your employment with Hays has not ended, we are ready and willing to find you an alternative casual assignment so if you can send through your updated CV we can potentially put you in contact with the relevant consultant.
Statutory framework
Section 365 of the Act relevantly provides that a person who has been dismissed may apply to the Commission to deal with the dispute. The circumstances in which a person is taken to be “dismissed” are relevantly set out in s 386(1) of the Act.
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
…
Consideration
The question to be determined in this application is whether Ms Ponte was dismissed by either of the respondents.[4] This is an antecedent issue that must be resolved before the Commission may exercise the powers conferred by s 368 of the Act.[5]
Ms Ponte makes the following contentions. First, Ms Ponte submits that Hays’ conduct has resulted in her “constructive dismissal.” I understand that Ms Ponte contends that she was forced to resign due to Hays’ conduct as her employer, pursuant to s 386(1)(b) of the Act. Ms Ponte says this is because Mr Ng made the decision to end her assignment with NAB before speaking to her or investigating the matter, and in doing so “damaged or destroyed the relationship of confidence and trust between the parties.”[6]
Second, Ms Ponte says that the rights and duties between her and NAB should be considered “to determine whether an employer-employee relationship existed.” Ms Ponte submits that that the “absence of an employment contract between [Ms Ponte and NAB] should not be a determinative factor to determine whether an employer-employee relationship existed between the parties.”[7]
The documentary evidence before the Commission relevantly comprises of the Terms of Engagement between Hays and Ms Ponte, which were signed by Ms Ponte on 9 August 2022,[8] and an assignment letter issued to Ms Ponte by Hays on 10 January 2023 and signed by Ms Ponte on 11 January 2023.[9] NAB is not a party to either of these agreements.[10]
The Terms of Engagement relevantly state that Ms Ponte will be offered casual assignments to perform services for any clients of Hays on an as required basis. Further, the terms identify that a client may elect to end any casual assignment at its absolute discretion.
The assignment letter demonstrates that Ms Ponte was temporarily assigned to Hays’ client, NAB, on 10 January 2023 to perform the role of Personal Direct Servicing Advisor. The assignment letter makes clear that Ms Ponte was engaged and paid by Hays as a casual employee and would be offered hours of work as a casual employee, dependent upon Ms Ponte’s availability and NAB’s needs.
The contracts entered into by Ms Ponte clearly demonstrate that she was employed by Hays on a casual basis pursuant to the Terms of Engagement. Ms Ponte accepted during the proceedings that she was an employee of Hays’. I am satisfied and I find that Ms Ponte was casually assigned by her employer Hays, to NAB pursuant to the assignment letter dated 10 January 2023. Against this context, I turn to consider Ms Ponte’s respective contentions.
Was Ms Ponte dismissed by Hays?
Ms Ponte contends that she was forced to resign from her employment with Hays due to its conduct. Hays submits that it has not terminated Ms Ponte’s employment. To the contrary, it says that it has invited Ms Ponte to apply for a call centre advisory role and attempted to engage with Ms Ponte by requesting an updated CV so that it may place her on another assignment.
Ms Ponte gave evidence that Mr Ng’s conduct eroded her trust in Hays as her employer. She said that she could not comfortably continue her employment with Hays and held concerns that a similar situation may arise in any future assignments. Ms Ponte referred to her ‘resignation’ and submits that this was, in effect, communicated to Hays by her failure to respond to its communications providing her with further assignment opportunities. She says that Hays ought to have known that it had put her in a position where she felt she could no longer trust the organisation.
Section 386(1)(b) of the Act is concerned with the resignation of a person from their employment where the resignation was “forced” by conduct or a course of conduct on the part of the employer. The test to be applied is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign.[11]
The question of whether a resignation occurred does not depend on the parties’ subjective intentions or understandings of the matter. Rather, it depends on what a reasonable person in the position of the parties would have understood was the objective position, based on what each party has said or done, in light of the surrounding circumstances.[12] The conduct of the employer (Hays) is the essential element.[13]
The evidence demonstrates that Ms Ponte was informed by Mr Ng on 22 June 2023 that her assignment at NAB had concluded. This communication was consistent with the Terms of Engagement between Hays and Ms Ponte which recognise the client’s right to end a casual assignment at its discretion. Thereafter, on 28 June 2023 and onwards Ms Ponte was advised that she remained an employee of Hays. Ms Ponte does not contest that Hays offered her further temporary casual work opportunities following the cessation of her assignment with NAB. Ms Ponte’s firm position is that she chose to no longer be aligned with Hays and states that communicated her resignation from Hays by her refusal to respond to its correspondence.
On the evidence, I find that Ms Ponte reached a subjective conclusion that she no longer trusted Hays and did want to continue her employment with it. I accept Ms Ponte’s evidence that upon forming this view, she purported to resign from her employment by refusing to further communicate with Hays.
There is no evidence that supports a conclusion that the cessation of Ms Ponte’s employment in this way was the probable result of Mr Ng or Hays’ conduct such that Ms Ponte had no effective or real choice but to resign. I reject Ms Ponte’s contention to this effect.
Having regard to my findings and the conclusions reached, I am satisfied that Ms Ponte was not forced to resign because of conduct, or a course of conduct, engaged in by Hays within the meaning of s 386(1)(b) of the Act.
Was Ms Ponte dismissed by NAB?
Ms Ponte contends that the Commission should characterise her relationship with NAB by reference to her rights and duties to determine whether an employment relationship existed. Ms Ponte relies upon aspects of the judgement of the High Court in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (Personnel Contracting) in support of her position.[14] However, there is no evidence of the “rights and duties” that Ms Ponte relies upon to support her contention that she was an employee of NAB.
Regardless, Ms Ponte’s reliance upon PersonnelContracting is misplaced. An analysis of any ostensible control placed by NAB over Ms Ponte’s work while on assignment, in the manner urged by Ms Ponte, is neither necessary nor appropriate. During the proceedings Ms Ponte accepted that she was employed by Hays. Further, Ms Ponte conceded that at no stage was she offered a written employment contract by NAB, and nor did NAB make her any verbal offers of employment.
By sections 12 and 386(1) of the Act, a “dismissal” is defined by reference to employment. I am satisfied and I find that there was no employment relationship between Ms Ponte and NAB. At all material times, Ms Ponte was on a temporary assignment to NAB in accordance with the assignment letter between Ms Ponte and her employer, Hays. NAB’s election to end Ms Ponte’s assignment was not an act of dismissal by NAB because NAB was not Ms Ponte’s employer. In these circumstances, I am satisfied that NAB did not (and could not) dismiss Ms Ponte within the meaning of s 386(1) of the Act, or at all.
To the extent that Ms Ponte contends that she was jointly employed by both respondents. I reject this contention. The Full Bench of the Commission in FP Group Pty Ltd v Tooheys Pty Ltd[15] declined to find that jurisdiction exists for the Commission to hear a claim of joint employment in circumstances where there is no firm adoption of that concept in Australian law by the courts. In circumstances where there can only be one employer, I am satisfied that Ms Ponte’s employer at all material times was Hays.
In reaching this conclusion, I have taken into account Ms Ponte’s reliance upon the decision in Star v WorkPac Pty Ltd T/A WorkPac Group (Star).[16] I do not accept that the decision in Star, which involved an unfair dismissal of an employee of a labour hire company, is applicable to the determination of this application, which is confined to the question of whether or not Ms Ponte was dismissed.
I also reject Ms Ponte’s fleeting contention that she was dismissed because she had taken a period of personal leave. This matter was not the subject of any elaboration during the hearing and there is no evidence to support it.
Order and disposition
I find that Ms Ponte has not been dismissed within the meaning of s 386(1) of the Act. Consequently, at the time she made her application in the Commission, Ms Ponte was not a person who has been dismissed for the purposes of s 365 of the Act.
The respondents’ jurisdictional objection is upheld and Ms Ponte’s application is dismissed.
DEPUTY PRESIDENT
Appearances:
G Kominakis, for the applicant
S Joselyn, on behalf of Hays Specialist Recruitment (Australia) Pty Limited
S Colmanet, on behalf of National Australia Bank Limited
Hearing details:
2023.
Melbourne:
September 27.
[1] Exhibit 1, Witness statement of Alexander Ng at [2]
[2] Witness statement of Alexander Ng at [7]
[3] Ibid at [8]
[4] Fair Work Act 2009 (Cth) s 365
[5] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152; 279 FCR 591 at [67]
[6] Ms Ponte’s outline of submissions at [8]-[9]
[7] Ibid at [18]
[8] Witness statement of Alexander Ng at [7]; Annexure AN-1
[9] Witness statement of Alexander Ng at [10]; Annexure AN-4
[10] Tregidga v Pasma Holdings Pty Limited [2021] FCA 721 at [45]; Chambers v Broadway Homes Pty Ltd[2022] FWCFB 129; 317 IR 205 at[40]
[11] Bupa Aged Care Australia Pty Ltd (t/as Bupa Aged Care Mosman) v Tavassoli[2017] FWCFB 3941; (2017) 271 IR 245 at
[47(2)]
[12] Koutalis v Pollett [2015] FCA 1165 at [43]; Canberra Urology Pty Ltd v Lancaster[2021] FWCFB 1704 at [30]
[13] Bupa Aged Care Australia Pty Ltd (t/as Bupa Aged Care Mosman) v Tavassoli[2017] FWCFB 3941; (2017) 271 IR 245 at
[47(2)]
[14] Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; 275 CLR (Personnel Contracting) at [41] and [66]
[15] [2013] FWCFB 9605; 238 IR 239
[16] [2018] FWC 4991; 283 IR 1
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