Kevin Lawless v Valmec Australia Pty Ltd

[2021] FWC 2908

[2021] FWC 2908

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Kevin Lawless
v
Valmec Australia Pty Ltd
(C2021/1763)

COMMISSIONER PLATT ADELAIDE, 20 MAY 2021

Application to deal with contraventions involving dismissal – jurisdictional objection person not an employee of Respondent - not dismissed.

[1] On 23 March 2021, Mr Kevin Lawless filed a s.365 application (the Application) alleging that he was dismissed by Valmec Australia Pty Ltd (Valmec) in breach of the general protection provisions of the Fair Work Act 2009 (the Act).

[2] On 14 April 2021, Ms Rochelle Airey (of counsel), on behalf of Valmec, filed a Form F8A Employer Response which identified a jurisdictional objection, that Mr Lawless had not been employed by Valmec and thus could not have been dismissed. Valmec contended that Mr Lawless was an employee or contractor to Tailored Resources Pty Ltd (Tailored Resources).

[3] The matter was allocated to my Chambers on 27 April 2021.

[4] On 28 April 2021 my Chambers wrote to Mr Lawless and invited him to consider making an application to amend the name of the Respondent. Mr Lawless was given until 3.00pm, 30 April 2021 to indicate whether he wanted amend the name of the Respondent. Mr Lawless did not respond.

[5] On 4 May 2021, I issued directions for the filing of material and the conduct of a Hearing on 25 May 2021 on the jurisdictional objection as to whether Mr Lawless had been dismissed by the named Respondent. The Hearing was subsequently brought forward to 20 May 2021 at the request of Mr Lawless.

[6] An electronic Court Book, containing all of the submissions, statement and documents provided by the parties was circulated by email prior to the Hearing.

[7] The parties filed material and a Hearing was conducted by teleconference on 20 May 2021. The Hearing was recorded. Mr Lawless represented himself. Valmec was represented by Ms Airey, permission was granted pursuant to s.596 based on complexity and efficiency and was unopposed by Mr Lawless. The Hearing was conducted as a Determinative Conference in order to mitigate the impact of representation on Mr Lawless.

[8] By way of background, Valmec is contracted to provide services to Beach Energy. Valmec contend that they engaged Mr Lawless through a labour provider but did not employ him and thus could not have dismissed him.

[9] Valmec provided the following material:

•  A witness statement of Deon McLaughlin dated 7 May 2021. 1

•  A supplementary witness statement of Deon McLaughlin dated 19 May 2021. 2

[10] Mr McLaughlin gave evidence and was cross-examined by Mr Lawless.

[11] The documents submitted through Mr McLaughlin included:

•  A copy of a commercial contract between Valmec and Tailored Resources which concerns the supply of temporary workers to Valmec by Tailored Resources executed on 3 February 2021. Clauses 7.4 and 7.5 of the contract provides that Tailored Recourses will employ and pay the worker and charge a fee to Valmec.

•  An email from Mr Lawless to Lezly D'Limi of Tailored Resources dated 9 March which stated:

“I was Contracted Up till 17 March I expect to Be paid Up to 17 March I have turned Down other Work To meet their Demands and Contract I am not going to be Their Scapegoat Because of Their Bad management I have copies Of Documents and photos which I will publish Showing Their incompetence and supply them to Beach Do not Mick me Around I have no time for cowboys”

•  An electronic time book (the accuracy of which was contested by Mr Lawless).

•  A contract of employment between Mr Lawless and Tailored Resources. Mr Lawless disputed that the signature was his and the contract has not been executed by Tailored Resources.

•  A copy of a Tailored Resources Pre-Employment Medical dated 12 February 2021 allegedly signed by Mr Lawless. Mr Lawless disputed that was his signature.

•  A copy of a Beach Energy Contractor Competency Contractor form dated 15 February 2021. This document was signed by Mr Lawless and nominated the company as Tailored Resources.

•  A copy of a payslip for the period 8-14 March 2021 on a Tailored Resources letterhead.

[12] Mr Lawless gave evidence and was cross-examined.

[13] Mr Lawless submitted a statement which is reproduced below and gave evidence.

“I was employed By Valmac, I was interviewed by Valmac staff at Valmac Head office in Perth I was instructed to act on behalf of Valmac I was given a Car, Paid for by Valmac and told to drive to Dongara with other employees of Valmac to stay at a Motel in Dongara with Valmac staff I got up at 4.30 and left to work at 5.00 am and drove to the site Valmac were working on (no other contractor was working on)to start work at 6.00 am With all the the other workers from from Valmac There was No other workers from Tailored all the workers were from Valmac There was no Management there was no supervision from Tailored Tailored were not there, I worked directly under the instruction of Valmack,s Construction manager and nobody else, No body from tailored ever visited the site I followed instructions from Valmac Staff at all times I believe tailored act as am employee of Valmac and act as agents for Valmac This does not remove Valmac from their Duty of Care My work exposed major Negligence, Failures, Bad Management and Carelessness by Valmac To prevent accidents Injuries and Deaths to workers That was why I was sacked By Valmac”

[14] Mr Lawless accepted that he identified Tailored Resources as the company he worked for on the Beach Energy form and that he was paid by Tailored Resources.

[15] At the conclusion of the evidence, Mr Lawless was invited to consider amending the name of the respondent on his application but declined to do so.

[16] No issues of credit arose. The facts are largely not in dispute.

Consideration

[17] In Coles Supply Chain Pty Ltd v Milford 3, the Full Federal Court found that it was a requirement of the Commission to determine any jurisdictional disputes which arise in regard of an application under s.365 before the Commission can exercise the powers conferred by s.368 of the Act.

[18] In labour hire situations, the traditional view is that the employer is the entity which has the contractual relationship with the employee. The ‘host firm’ has no contract with the employee, and as a result cannot have an unfair dismissal claim made against them. 4 No contract will be inferred simply because the ‘host firm’ exercises a degree of control over the day-to-day operations of the employee.5

[19] On the evidence before me I am not persuaded that Mr Lawless was employed by Valmec.

[20] It appears to me that Mr Lawless was engaged to provide services to Valmec via Tailored Resources, who is the employer.

[21] Mr Lawless complains that Valmec hides behind Tailored Resources, however it was open to Mr Lawless to amend his application to name Tailored Resources but he determined not to do so.

[22] The nomination of Tailored Resources as the company Mr Lawless worked for on the Beach Energy document is a strong indicator that it is the employer.

[23] The fact that Mr Lawless agrees that he was paid by Tailored Resources is also a strong indicator that it is the employer and I note that this is consistent with the commercial contract between Valmec and Tailored Resources.

[24] The communication between Mr Lawless and Tailored Resources on 9 March 2021 is also indicative of an employment relationship.

[25] I have not taken into account the contract of employment or the pre-employment medical forms which Mr Lawless disputes he signed.

[26] There is no direct evidence of any employment relationship between Mr Lawless and Valmec.

[27] I am not persuaded that the fact that Mr Lawless may have been subject to direction by Valmec or was the only Tailored Resources employee on site means that Valmec must be the employer.

[28] I find that Mr Lawless was not employed by Valmec and thus cannot have been dismissed from employment with Valmec.

[29] Accordingly, Mr Lawless’ s.365 application must fail for want of jurisdiction and is dismissed. An Order 6 giving effect to this Decision is issued in conjunction with its publication.

COMMISSIONER

Appearances:

K Lawless, Applicant.

R Airey for the Respondent.

Hearing details:

2021.

Adelaide:

May 20.

Printed by authority of the Commonwealth Government Printer

<PR730029>

 1   Exhibit R1 (including attachments)

 2   Exhibit R2 (including attachments)

 3 [2020] FCAFC 152.

 4   Arcadia v Accenture Australia (2008) 170 IR 288.

 5   Wilton v Coal & Allied Operations Pty Ltd (2007) 161 FCR 300.

 6   PR730044.