Karl Yokana v Hays Specialist Recruitment (Australia) Pty Limited

[2024] FWC 2338

[2024] FWC 2338

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Karl Yokana
v

HAYS SPECIALIST RECRUITMENT (AUSTRALIA) PTY LIMITED

(C2024/4728)

DEPUTY PRESIDENT CLANCY MELBOURNE, 2 SEPTEMBER 2024

Application to deal with a dismissal dispute under s365 of the Act - jurisdictional objection that there was no dismissal – Applicant not dismissed – jurisdictional objection upheld and Application dismissed.

1. On 10 July 2024, Mr Karl Yokana made a general protections application involving dismissal to the Fair Work Commission, pursuant to s.365 of the Fair Work Act 2009 (the Act), by filing a Form F8 – General Protections Application Involving Dismissal. The Respondent to this application is Hays Specialist Recruitment (Australia) Pty Limited (Respondent) and it has objected to Mr Yokana’s application on the basis that there was no dismissal.

1. In Coles Supply Chain Pty Ltd v Milford,[1] the Full Court of the Federal Court outlined the task of the Commission in cases such as this one, as follows:

“To summarise, when an application is purportedly lodged under s 365 it is open to a respondent to assert that there has been no dismissal, so giving rise to a dispute on that question. Such a dispute falls to be determined not under s 368 but under s 365 itself. It is an antecedent dispute going to the entitlement of the applicant to apply.”[2]

1. As a person must have been dismissed in order to be entitled to make a general protections dismissal dispute application, I must determine whether Mr Yokana has been dismissed by Hays Recruitment before the Commission can exercise powers under s.368 to deal with a dispute about whether there was a dismissal in contravention of the general protections set out in the Act.

1. Pursuant to Ddirections issued on 5 August 2024, the parties filed and served submissions, witness statements and documentation relied upon. Mr Karl Yokana and Ms Sophie Joselyn appeared at a hearing on 23 August 2024, during which Mr Yokana and Ms Bethany McColl, Senior Recruitment Partner for the Respondent, gave evidence.

Factual background

1. The Respondent operates a labour hire and recruitment business. It enters into labour hire contracts with clients to supply labour upon request. On 16 May 2024, Mr Yokana signed terms of engagement with the Respondent[3] whereupon the Respondent agreed to offer him assignments as a temporary casual employee to its clients, performing such work as the client might require. In signing the terms, Mr Yokana agreed that the nature of his engagement was that:

(a)   the work was intermittent, irregular and unpredictable;

(b)   the Respondent was under no obligation to offer him assignments;

(c)   the Respondent had no liability for the payment of any wages, salary, leave entitlements or otherwise should it not offer him any assignment or for any periods where he was not performing any assignment;

(d)   the duration and length of any assignment was not guaranteed;

(e)   clients of the Respondent could vary the length of or end any assignment at their absolute discretion;

(f)    he was not obliged to accept any assignment offered by the Respondent but on acceptance, was required to comply with reasonable directions of the Respondent and the client in respect of the services to be performed;

(g)   he undertook to co-operate with the client’s staff and accept the direct supervision and instruction of any responsible person in the client’s organisation.

1. One such client of the Respondent was the National Australia Bank (NAB) and on 20 May 2024, Mr Yokana signed terms outlining a casual assignment with NAB pursuant to the terms of engagement as an Operations Advisor commencing on 17 June 2024.[4] The assignment was short lived. Mr Yokana gave an account of participating in a group activity at NAB during some training on 26 June 2024 which ended 7 minutes late, thereby extending into the start of a 15 minute break scheduled for 9.45am -10.00am. Mr Yokana said that having started his break late, at 9.52am, he finished it at 10.07am and that upon his return, he was singled out and “yelled at” by one of the trainers without being given sufficient opportunity to explain the situation. Mr Yokana attributes this mistreatment to poor communication. He suggested the trainer who yelled at him was not aware of the reason for his late return and proffered that he may also have been specifically targeted because of his race.

1. Ms McColl said that she was advised in a Zoom meeting on 26 June 2024 with Mr Yokana’s manager at NAB, Mr Rober Maglovski, that NAB had elected to end Mr Yokana’s assignment due to his inability to take on feedback or direction. Ms McColl said that she was informed by Mr Maglovski that Mr Yokana had refused to take part in a role play during a training session and engaged inappropriately with the trainer after the trainer had provided him with some feedback regarding his failure to return from his allocated break on time. Ms McColl said she then contacted Mr Yokana later on 26 June 2024 and advised him that NAB had elected to end his assignment for those reasons. During this conversation, Mr Yokana expressed disappointment that there had been no investigation into what had transpired. Ms McColl then sent Mr Yokana an email at 4.24pm on 26 June 2024, which stated:

“Hi Karl

Tried to give you a buzz back then but went straight to voicemail.

I truly appreciate the feedback you have given on your time at NAB and I have raised this with the higher manager to look into. With regards to finding you a new role please do send me an up to date resume and I will send across to relevant teams for you…Again appreciate you speaking to me and relaying that feedback.”[5]

1. Correspondence was exchanged between Mr Yokana and Ms McColl on 28 June 2024. Mr Yokana sent Ms McColl an email at 11.12am attaching his resume. Ms McColl responded at 11.33am, advising Mr Yokana that she would be forwarding his resume to the Respondent’s ANZ team and other banking teams and encouraging him to both apply for roles advertised on the Respondent’s website and contact her so she could ‘loop’ him in with the Respondent’s applicable consultant. Ms McColl also produced emails outlining the subsequent communications she had with Mr Yokana on 3 July 2024, and which refer to the Respondent’s efforts to secure further employment for the Applicant. Ms McColl stated that the next time she heard anything relating to Mr Yokana was when correspondence was received from the Commission advising that he had commenced this application.

Consideration

1. Section 386(1) of the Act relevantly defines the meaning of “dismissed” as follows:

“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.

…”

1. In his General protections dismissal Form F8,[6] Mr Yokana asserted that he was told he was being dismissed on 26 June 2024 and the dismissal took effect on 28 June 2024. He also referenced having been termination from his employment with NAB and having been “sacked” for no reason. In a statement dated 15 August 2024,[7] Mr Yokana made reference to having been unfairly dismissed. I find no evidence of this. I am satisfied the Respondent took no steps to terminate Mr Yokana’s employment in circumstances contemplated by s.386(1)(a) of the Act. I am satisfied s.368(1)(a) is not enlivened in this case.

1. However, Mr Yokana confirmed at the hearing that his position was that he had involuntarily left the Respondent. He characterised this as a “forceful resignation”. Mr Yokana stated that he did not want to reply to emails from Ms McColl and did not want to work with the Respondent any longer. Mr Yokana maintains that he was forced to resign from his employment at Hays because he was left feeling unsupported in the wake of the events at NAB. In this regard, Mr Yokana contends that the Respondent should have undertaken an investigation into the treatment he received at NAB and defended his position.

1. The Respondent argued there is no evidence to support a finding of a forced resignation. The Respondent outlined that following the end of Mr Yokana’s assignment at NAB, it had asked him for an up-to-date resume, sent his details to various teams within its organisation and encouraged him to apply for roles of interest advertised on its website. The Respondent submits that Mr Yokana had the choice to seek further support in identifying alternative assignments and placement in such positions rather than resigning, plus options of either submitting a formal complaint or, if he was unhappy with the way Ms McColl had handled things, requesting a different consultant to assist him with the management of his concerns about the end of his assignment at NAB. The Respondent submitted Mr Yokana reached his own conclusion that he could no longer trust the Respondent and made an informed and voluntary decision to resign from his employment.

1. I am satisfied that Ms McColl dealt appropriately with Mr Yokana, that she was prepared to assist him in finding a new assignment and that she took appropriate steps in this regard. I consider Ms McColl made genuine offers of ongoing assistance to Mr Yokana. The email correspondence on 3 July 2024 between Mc Coll and Mr Yokana concluded with Ms McColl’s invitation for Mr Yokana to advise her when he had applied for roles advertised on the Respondent’s website. In relation to Mr Yokana’s feedback regarding NAB, Ms McColl “raised this with the higher manager to look into.”[8] While Mr Yokana says he heard nothing further regarding this and was critical of the Respondent as a result, I also note that he acknowledged that at no stage did he request to be placed with another of the Respondent’s consultants for the purpose of pursuing new assignments, if he was unhappy with Ms McColl. Mr Yokana also acknowledged that clients of the Respondent could end his casual assignments at their absolute discretion. There is no evidence before the Commission indicating that Mr Yokana actually advised the Respondent that he was resigning. However, even if it was accepted that Mr Yokana resigned, I am not persuaded, having considered and weighed the evidence before me, that Mr Yokana was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent (s.386(1)(b)). Mr Yokana had other options but elected not to pursue them.

Conclusion

1. Mr Yokana was not dismissed by the Respondent. As such, his application does not meet the requirements of s.365 of the Act and the Commission does not have jurisdiction to deal with it. As a result of my determination, the application made by Mr Yokana pursuant to s.365 of the Act is dismissed. An Order to this[9] effect will be issued with this Decision.

DEPUTY PRESIDENT

Appearances:

K Yokana, Applicant.
S Joselyn for Hays Specialist Recruitment (Australia) Pty Limited.

Hearing details:

2024.
Melbourne (via Microsoft Teams)
23 August.

[1] [2020] FCAFC 152.

[2] Ibid at [67].

[3] DCB at page 27.

[4] DCB at page 26.

[5] Attachment BM-3 to Exhibit R1, DCB at page 37.

[6] Exhibit A1, DCB at page 2.

[7] Exhibit A2, DCB at page 5.

[8] Attachment BM-3 to Exhibit R1, DCB at page 37.

[9] PR778829.

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