Krzeva v McArthur Pty Ltd

[2015] FCCA 1158

FEDERAL CIRCUIT COURT OF AUSTRALIA

KRZEVA v MCARTHUR PTY LTD [2015] FCCA 1158

Catchwords:

INDUSTRIAL LAW – Temporary placement employment– constructive dismissal not made out – summary dismissal application– application dismissed – no order as to costs.

Legislation: 
Fair Work Act 2009 (Cth)

Applicant: ANTONETA KRZEVA

Respondent: MCARTHUR PTY LTD

File Number: BRG 42 of 2015

Judgment of: Judge Vasta

Hearing date: 20 April 2015

Date of Last Submission: 20 April 2015

Delivered at: Brisbane

Delivered on: 20 April 2015

REPRESENTATION

The Applicant appearing on her own behalf.

Solicitors for the Respondent: M + K Lawyers

ORDERS

1. The application filed on 22 January 2015 be dismissed.

2. There be no order as to costs.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRG 42 of 2015

ANTONETA KRZEVA

Applicant

And

MCARTHUR PTY LTD

Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 22 January 2015, the Applicant Antoneta Krzeva lodged in this Court an application claiming, in effect, dismissal for an unlawful and arbitrary decision. 

2. That arose out of an incident that had occurred in October 2014.  At that time, and presently, there was in existence a contract of employment between the Applicant and the Respondent. That employment contract provided that the Applicant would be employed by the Respondent; the Respondent would, through their client base, interact with clients who would need temporary placement for positions, usually of an executive nature but sometimes of an administrative nature;  the Respondent would allow their employees to fill the assignment that would be made by their client. 

3. In the course of the employment contract by the Respondent and the Applicant, the Applicant had taken on, at least, five previous assignments, including one with the Department of Health.  The present assignment was to begin on 11 August 2014, with an anticipated first end date of 11 November 2014; though the letter evidencing this seemed to be optimistic as to the assignment continuing past 11 November 2014.  This assignment was with the Department of Health in the Sunshine Coast area. 

4. Without going into too much detail of what had happened, it was clear that there were personal issues that occurred for the Applicant, and, on any reading of the Applicant’s material, the response by the Department of Health was woefully inadequate.  The Department of Health, the client, advised the Respondent that they were terminating the assignment.  They gave to the Respondent some reasons of poor performance and an incident of misconduct.  The Applicant was advised by the client, Department of Health, that the assignment was to be terminated.

5. One then has to look at the contract of employment between the respondent and the applicant.  Clause 3.1(d) of that Employment Agreement states that the termination of an assignment does not of itself constitute termination of employment.  Clause 3.1(f) states that the Respondent can terminate an assignment without reason, and, further, the Applicant has no right to continued ongoing employment in any assignment. 

6. Also, though not relevant at this point in time, clause 4.2 of the employment agreement states that the Respondent must give one hour’s notice or payment in lieu thereof to terminate the employment relationship.  I mention that because clause 4.2 is a totally different clause to that which regulates the assignment of the Respondent to their client’s and how that affects the employees of the Respondent.

7. The Applicant had the assignment, from the Department of Health, terminated on 21 October 2014.  In effect, for this application to get off the ground it must be shown to the Court’s satisfaction that there has actually been a dismissal.  It would seem, from the clause 4.2 that I just referred to, that the only way in which there can be a dismissal is if clause 4.2 is utilised by the Respondent.  It does not seem to me, on the evidence, that that clause has been used.  There has certainly never been given any notice to the Applicant that the employment agreement was at an end.  In submissions for the Respondent today, the Respondent still asserts that the employment agreement is still ongoing.

8. The Applicant brought to the Court’s attention three aspects which the Applicant believed could amount to a constructive dismissal, i.e., a dismissal that has occurred in all but name.  I will deal with those aspects seriatim.  The first aspect is the Applicant being denied access to the website of the Respondent. 

9. The applicant stated that as far as she was concerned, having been in the employ of McArthur for some time, that upon the cessation of an assignment she is able to access the website to fill in the last of the timesheets to make sure that all her timesheets are completed, and then is able to access another part of the website which will give her access to her payslips.  She says that she has been unable to do so since the termination of the assignment. 

10. In an affidavit sworn, though it’s dated 24 April 2015, we haven’t gotten there, that must be an incorrect date, but it would seem it may have been sworn today, 20 April 2015, and which I gave leave to read and file, the Applicant exhibited a number of printouts showing attempts by her to access the website.  She also exhibited a series of emails sent between her and a Miss Linda Robson, the senior recruitment consultant for McArthur. 

11. On 23 October 2014, the Applicant asked for, it would seem, an ability to access her timesheet and payslip details.  She was unable to do so.  She received an email from Ms Robson, asking her to forward her timesheet logon user ID and password, so she could access the last payslip and send it to her.  The Applicant did do that and it seems as though the payslip was sent and the timesheets were ensured to have been up to date.  The question asked by the Applicant is:  Why did she need to do that if there hadn’t been an action by the respondent to deny her access to the website?  The Applicant points to the message that she receives now, that:

    “Your login attempt was not successful.  Please try again – “

    The Applicant submits that this message was different to the message that she would get if she had put in her information incorrectly.

12. Ms Bensley gave evidence before me today.  She could not explain why it was that the Applicant had trouble accessing the website.  But she said that it was not through any action of the Respondent.

13. Mr Mossman, who appears for the Respondent, then gave some details of the IT persons who could be contacted, and has undertaken to give the Applicant the contact details of those persons who will check to see if there is a glitch in the system and ensure that the Applicant does have access to the website.  So therefore the submission made by the Respondent is that the evidence is not that there has been any deliberate action by the Respondent to keep her from the website, but it was a glitch which now will be fixed.

14. The second aspect which the Applicant looked at to say that there could well be a constructive dismissal is that she has not been given any further assignments since the last assignment was terminated.  She pointed to her very good work record, her excellent references and credentials, and the fact that before the assignment that began in August of 2011 there had never been any negative feedback given on any performance of hers.

15. When asked about this today, Ms Bensley was able to say that, to her knowledge, the Applicant had requested work in the Sunshine Coast area.  There is some support for her having that belief.  The assignment previous to the 11 August assignment was terminated by mutual agreement, so that an assignment that would have the Applicant working in the Sunshine Coast area could actually occur with the same client; that is, she had been working for the Department of Health in the Brisbane or Chermside area and the opportunity came for the assignment to occur now at the Sunshine Coast area, which is what the Applicant wanted.

16. In response to this, the Applicant has pointed out that it is not that she would not accept any work outside of the Sunshine Coast area.  She would accept work in Brisbane or anywhere else that the Respondent was able to find her. 

17. That being said, when one looks at the evidence of Ms Bensley, her evidence was that the six clients that McArthur have in the Sunshine Coast area seem to need the executive level of placement rather than the administrative one.  The client that requires administrative support is the Department of Health, with whom the last assignment had been.  As such, this was the reason that they had not been able to find any work in that area for Ms Krzeva.  So therefore the submission from the Respondent is that the fact that there have been no further jobs has probably come from a miscommunication between the Applicant and the Respondent, rather than any purposeful action by the Respondent to deny the Applicant any work.

18. The third aspect is that in December of 2014, when there had been no further work, the Applicant went to Centrelink to start to receive social security benefits.  As Centrelink properly do, they required a separation certificate to show that there had been no employment for the requisite number of days before they could start the payment of unemployment benefits.  The problem, of course, is that the separation certificate usually is between employer and employee, and it is something that is given once an employee stops receiving remuneration for their labour.  Of course, in this situation, the Respondent says that there hasn’t been any cessation of employment, but there has been cessation of assignments.  I have been told that it is not unusual for the Respondent to issue separation certificates simply for that purpose, so that the employees who have no current work can still access social security benefits.

19. It was clarified in evidence by Ms Bensley that a separation certificate was asked for by the Centrelink Department and such certificate was then forwarded by McArthur to Centrelink, so that unemployment benefits could be given to the Applicant.  That situation, once clarified, did not mean what it may have meant without explanation, that is, that there had been a cessation of employment.

20. Whilst each of those matters was able to be explained, such explanation was needed by way of evidence here today.  When one looked at each of those three aspects, without there being the further explanation, it would be very easy to come to the inferential conclusion that there had been what would be called a constructive dismissal, and the actions of the Applicant therefore would seem justified.  However, having listened to the evidence and gone through each of those three matters carefully, it is my view that the explanations proffered are reasonable, that they are the proper ones to be inferred, and in that respect, there is nothing upon which I could find that there has been any form of dismissal, constructive or otherwise.

21. There were many other points made by the Applicant as to the validity of the contract, as to the protection afforded to her by the Respondent, by her reasons that she has as to feeling as though she has been blacklisted, and so on.  As I said to her in the course of the proceeding, what has occurred is not a matter for this Court, under the action upon which she has commenced these proceedings.  I do note that there have been other proceedings started in the anti-discrimination jurisdiction of the Queensland Civil and Administrative Tribunal.  In my view, that is an appropriate forum for these matters to be aired.  If there has been discriminatory conduct by the Department of Health aimed at the Applicant, who at the time was in an extremely vulnerable position, that Tribunal is the appropriate vehicle and body to meet out sanctions for such behaviour.

22. However, as I say, I am confined to that which is before me, which is an application for a dismissal contrary to law.  In my view, looking at the evidence that I have before me, the contract of employment has not ended, it is still ongoing between the Respondent and the Applicant; therefore, there is no dismissal and therefore there is no cause of action under the provision in which the Applicant has brought this matter.  So, under the Rules of this Court, I find that the claim has no basis in law, and there are no reasonable prospects of success. The matter will now be struck out.

23. I make no order as to costs.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  6 May 2015