Kenneth Wallis v Mills Corporation Pty Ltd

[2024] FWC 3494

[2024] FWC 3494

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Kenneth Wallis
v

Mills Corporation Pty Ltd

(C2024/7692)

COMMISSIONER MCKINNON SYDNEY, 16 DECEMBER 2024

Application to deal with contraventions involving dismissal – whether dismissed

1. Mr Kenneth Wallis worked as an onhire casual Water Cart Operator at the Mt Weld Mine near Laverton, Western Australia from 12 January 2024 until 7 October 2024. He was employed by Mills Corporation Pty Ltd trading as Mills Recruitment Agency (Mills Recruitment) for the duration. On 23 October 2024, Mr Wallis applied in time for the Commission to deal with a general protections dispute involving dismissal under section 365 of the Fair Work Act 2009 (the Act). Mr Wallis alleges that he was dismissed in contravention of the general protections when he resigned in response to Mills Recruitment’s blind acceptance of a ‘set up’ to have him sacked by employees of the host employer, Mt Weld Mining Pty Ltd, for safety breaches.

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. Mr Wallis accepts that as a labour hire employee, he was not ‘dismissed’ in the sense of ‘termination at the initiative of the employer’ when his assignment at the Mt Weld Mine ended. However, he asserts that he was dismissed for the purposes of s.386(1)(b) of the Act when he was forced to resign on 10 October 2024 by the conduct of Mills Recruitment.

1. I find that Mr Wallis resigned voluntarily and was not dismissed by Mills Recruitment. The result is that Mr Wallis cannot apply for the Commission to deal with the dispute under s.365 of the Act. These are my reasons.

Was Mr Wallis dismissed?

1. On 7 October 2024, Ms Marcella Watson, Processing Manager for Mt Weld Mining Pty Ltd, sent an email to Mills Recruitment expressing concerns about Mr Wallis’s attitude towards safety and site rules, and saying:

“Based on the events during the week and his prior performance and feedback from the supervisors, I’d like to finish Ken’s contract with Lynas.”

1. On 9 October 2024, Mr Wallis received a call from Mr Bryan Kennelly of Mills Recruitment. Mr Kennelly told him that he had received an email from the mine client and that he was dismissed immediately from the mine site for dangerous driving, speeding and not wearing a seat belt. He was told that his name had been removed from the flight manifest and that his belongings would be forwarded to his home address. After Mr Wallis refuted the allegations and asked for a chance to defend himself, Mr Kennelly said that he would speak to the mine management and call him back.

1. There is a dispute about whether Mr Kennelly used the words “dismissed” and “dangerous driving” in his telephone call with Mr Wallis on 9 October 2024. Having had the opportunity to observe each of the witnesses I prefer the evidence of Mr Wallis on the matter and accept that these words were used. Nothing turns on it in a legal sense, because the alleged dismissal occurred the following day. However, the content of the conversation is relevant because it informed Mr Wallis’s decision to resign.

1. On 10 October 2024, Mr Kennelly called Mr Wallis to confirm that he was still dismissed. Mr Wallis asked him to put it in writing. Mr Kennelly told Mr Wallis that he was still employed by Mills Recruitment and that he would send him a letter.

1. On 10 October 2024, Mr Kennelly wrote to Mr Wallis:

“Dear Ken,

As discussed with you, we wish to inform you that we have been advised by Mt Weld Mining Pty Ltd that your assignment as a Water Cart Operator has now concluded. You have been removed from the manifest to fly back to site on Monday.

This email provides you with written notice of the end of your assignment effective from the close of business 7-Oct-2024.

Your gear that was left on site will be returned to you at your address on our records.

Mills Recruitment will endeavour to assist you to find another assignment. Please update your resume and send this back to us to assist us with our search.”

1. Mr Wallis responded later that day:

“Bryan,

This in no way covers your backside.
I don’t believe Fair Work Australia or Work Safe will be carried by this.
Leaving out the details you accused me of as reason for dismissal, in this email doesn’t extinguish them.
You have rung me twice on the last two days stating why you are dismissing me.
I am telling you now that I was with old experienced friend that spent many years supplying the mining industry when you called me yesterday. He was able to hear the complete conversation.
You obviously have followed up about the main and only charge that is cause for fair dismissal.
The fact that you dropped that charge and wouldn’t speak about it today, indicates that you are aware of the lies and deliberate attempt to make me guilty. At this point, you may have become complicit in the criminal actions of changing an alleged incident site to incriminate an innocent person.
Any person who knows anything about working on a mine side [sic] would dismiss the photos taken by Adam to make this dastardly matter stick. No one would attempt to drive through the area after they put the three small cones down.
They didn’t even have the sense to lay a cone over, to support their criminal behaviour.
So if lying like this good for business, then I wish to have nothing more to do with that business.
Everything is on record so lying stops in court.
I will now advise the West Australian General Manage [sic] of Lynas rare earth and cc my immediate Supervisor, with all the details leading up to yesterday and your yesterday’s, witnessed phone call. Along with today’s phone call and a copy of your email and my reply. I will also be seeking compensation for loss of income from this unfair dismissal.”

1. By this email, Mr Wallis understood that he had resigned from his employment with Mills Recruitment. The same understanding was not shared by Mills Recruitment.

1. On 11 October 2024, Mr Kennelly wrote again to Mr Wallis:

“Hi Ken,

As per our email your assignment with Mt Weld only has concluded. Your employment status with Mills has not concluded. You are still employed with Mills.”

1. Mr Wallis responded:

“Hi Bryan,

I am advised that as I am still employed by you, I will be receiving the same renumeration [sic] as the last almost eight months.
Thanks for your clarification on this as my wife is Traumatised by the lies and innuendo that the last week has provided.
I will suspend any legal action until after And if I stop being paid.”

1. On 12 October 2024, Mr Wallis wrote to Mr Kennelly applying for stress leave from 7 October 2024.

1. On 14 October 2024, Mr Kennelly replied to Mr Wallis:

“Morning Ken,

Please find attached your Casual Employment Contract.

You will note that as a casual employee you are not entitled to paid leave, this includes stress leave.

You will be paid this week for the hours you worked last week, and your next pay will be when you are placed with your next assignment.

As has been requested in prior emails, please send through your updated resume so that we can assist you with finding your next placement.”

1. On 23 October 2024, Mr Wallis wrote to Mr Kennelly:

“You seem to have overlooked my immediate resignation, upon you becoming complicit in the criminal deception of changing an alleged incident site. 

I do not have any desire to be found working for people of this moral standing. 

In due time you will hear from the appropriate government departments.”

1. On 24 October 2024, Mr Kennelly replied to Mr Wallis:

“Morning Ken

Thank you for your email yesterday. 

From this we have noted your resignation of employment through Mills Recruitment and therefore we will not be actively looking for another placement. 

We wish you all the best in your future endeavours to find work.”

1. On 24 October 2024, Mr Wallis wrote to Mr Kennelly:

“I resigned from your employment, immediately you decided to join in the deliberate, defamatory lies emailed to you from Lynas Mt Weld.

You were well aware that the Dangerous Driving charge was a set up. However you chose lies over truth.

So now you will need to answer to the Fair Work Commission.

You will hear from them in due course and will be at their discretion. The said contact is subject to FWC 2009 and updates 2013 etc.”

Consideration

1. Mr Wallis entered into an employment contract with Mills Recruitment on 10 January 2024. Clause 1 of the contract states:

“You are offered employment by Mills Corporation Pty Ltd trading as Mills Recruitment as an onhire casual employee. This means that you are on-hired by Mills Recruitment to a Host Employer where you work under the general guidance and instruction of The Host Employer or a representative of the Host Employer.

You will be employed on a casual basis, initially to complete work relevant to the Assignment specified in Schedule 1 (Assignment).  You may be required to work on other assignments as required by Mills Recruitment from time to time.

You are engaged and paid as a casual employee. You are engaged by the hour on an irregular basis from time to time when work if (sic) offered to you.  Mills Recruitment provides no guarantee of ongoing employment, and provides no firm advance commitment to continuing and indefinite work according to an agreed pattern of work.  Each separate engagement that you work will be a separate contract of employment on the terms of this agreement, which ceases at the end of each engagement.

Additionally, you agree that this Agreement represents the full arrangement between the parties.”

1. Schedule 1 to the contract of employment provided details of the Assignment. This included work as a casual “Water Cart Op”, performing duties “as assigned by the client” for Mt Weld Mining Pty Ltd. Notice of termination of the current Assignment was 2 hours.

1. Mills Recruitment submits that its employment relationship with Mr Wallis came to an end on 7 October 2024 because termination of the contract of employment was self-executing at the end of the assignment to Mt Weld Mine. The submission is at odds with Mills Recruitment treating the employment relationship as ongoing in the period from 7 to 23 October 2024. I do not accept the submission. Although the employment contract assigning Mr Wallis to work at the Mt Weld Mine was terminated, the contract of employment expressly contemplated an enduring employment relationship despite the end of a particular assignment.

1. Mills Recruitment says in the alternative that the employment ended because Mr Wallis was engaged for a specified task, and the task came to an end on notice from Mt Weld Mining Pty Ltd. For the same reasons as above, this argument also fails. The contract expressly contemplated the possibility of work for other “Host Employers” if the assignment with one “Host Employer” came to an end.

1. Further in the alternative, Mills Recruitment submits that the employment relationship ended on 23 October 2024 when Mr Wallis voluntarily resigned. This submission is closer to my ultimate conclusion, which is that Mr Wallis resigned voluntarily on 10 October 2024 in the email set out above.

1. There is no dispute that Mr Wallis sent the email to Mills Recruitment on 10 October 2024 or that it was received. Mills Recruitment did not understand the email to have the effect of resignation, but that does not mean it was not legally effective. The misalignment was corrected on 23 October 2024 when Mr Wallis stated “You seem to have overlooked my immediate resignation” and following.

1. Mr Wallis submits that he was forced to resign because the initial call to dismiss him was a set up and that he never did what had been alleged against him. He was deeply offended that someone would change a site to incriminate someone and have them sacked. He was even more upset that Mills Recruitment had decided to ‘maintain the line’ with Mt Weld Mining Pty Ltd instead of giving him the opportunity to defend himself and conducting a proper investigation. He did not want to work for people who behaved that way.

1. The position is entirely understandable. There was no procedural fairness afforded to Mr Wallis in connection with the allegations made against him by Mt Weld Mining Pty Ltd. Nor does there appear to have been any investigation into the allegations before a decision was made to end Mr Wallis’ assignment. But that does not mean Mr Wallis was forced to resign from his employment with Mills Recruitment. The decision to resign was a choice made by Mr Wallis, reflecting his deep outrage at how he felt he had been treated, firstly by Mt Weld Mining Pty Ltd and then by Mills Recruitment when it acted to his detriment at the request of its client and his host employer.

1. For Mr Wallis, this made the employment relationship untenable. But for Mills Recruitment, the events of 7 – 10 October 2024 were an ordinary part of doing business in the labour hire industry, and Mr Wallis’s circumstances were of the very kind contemplated by his contract of employment. For these reasons, I am unable to conclude that Mr Wallis had no effective choice but to resign. At the time of his resignation on 10 October 2024, Mr Wallis retained the option of remaining in employment with Mills Recruitment and working with the business to find him alternative work.

Conclusion

1. I find that Mr Wallis resigned from his employment with Mills Recruitment of his own volition. If follows that he was not dismissed for the purposes of s.386(1)(b) of the Act. The jurisdictional objection is upheld and the application is dismissed.

COMMISSIONER

Appearances:

K Wallis on his own behalf.
D Mills for the respondent.

Hearing details:

2024.

Sydney (by video):
December 12.

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

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