DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Kym Wheare
v
Hi Trans Express
(U2020/14174)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 24 DECEMBER 2020

Application for an unfair dismissal remedy – truck driver – labour hire agency - whether employee of host business – no employment relationship – application dismissed

[1] On 28 October 2020 Kym Wheare (Mr Wheare or the Applicant) applied to the Commission under section 394 of the Fair Work Act 2009 (FW Act) for an unfair dismissal remedy concerning an alleged dismissal on 7 October 2020. The respondent to the application is Hi Trans Express¹ (Hi Trans or the Respondent).

[2] The application is opposed by Hi Trans which raises a jurisdictional objection. It says that it did not employ or dismiss Mr Wheare.

[3] Mr Wheare’s application was not conciliated as Hi Trans sought determination of his eligibility to make the claim before further proceedings (if any) were conducted.

[4] I issued directions on 18 November 2020.

[5] Materials were filed by Mr Wheare and Hi Trans (including materials made available during the hearing).

[6] I heard the matter by telephone on 15 December 2020. Both parties were self-represented.

Facts

[7] I heard evidence from both Mr Wheare and from Hi Trans’s General Manager of People, Safety and Culture Ms Marrone.

[8] There are some disputed facts, though generally the relevant facts are agreed (but not the application of the facts to the law). Where there are differences, it is largely the product of recall. Mr Wheare’s evidence tended on certain issues to fall into generality. Ms Marrone had a better specific recall on matters within her knowledge and belief. Whilst much of Mr Wheare’s evidence is able to be relied upon, I prefer Ms Marrone’s evidence where there are relevant factual differences.

[9] Mr Wheare is a driver of heavy and long-haul vehicles across state borders. He resides in Adelaide, South Australia. He drives largely between South Australia and the eastern states and along the eastern states. He has performed this work for about ten years.

[10] After responding to an advertisement on seek.com, Mr Wheare started work as a driver in about 2011 through a labour hire agency. He was placed with Hi Trans, who inducted him and through whom he secured his initial heavy vehicle driver accreditation.

[11] Between 2011 and 2014 Mr Wheare drove primarily for Hi Trans.

[12] In 2015 Mr Wheare ceased driving for Hi Trans.

[13] Between 2015 and 2019 Mr Wheare drove, again though a labour hire agency, for a variety of other trucking companies. He also took time off from driving to attend to family and personal matters.

[14] In the first half of 2020 (according to Mr Wheare, in about February / March; according to Hi Trans, in about May), Mr Wheare again responded to an advertisement for drivers on seek.com.

[15] When responding to the advertisement, Mr Wheare dealt with a labour hire agency…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kym Wheare v Hi Trans Express

Details

AGLC: Kym Wheare v Hi Trans Express [2020] FWC 7068
Case: [2020] FWC 7068
Decision Date: 24 DECEMBER 2020

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for an unfair dismissal remedy by Kym Wheare against Hi Trans Express. Wheare, a truck driver, was engaged through a labour hire agency and had been employed by various host businesses. The dispute centred on whether Wheare had an employment relationship with Hi Trans Express, a key issue for determining his eligibility for unfair dismissal remedies.

The legal issues the court had to address were whether Wheare was an employee of Hi Trans Express and, if not, whether he was an employee of the labour hire agency, which might confer upon him the rights and protections under the Fair Work Act. The court needed to discern the nature of the employment relationship between Wheare and Hi Trans Express, particularly considering the involvement of the labour hire agency in the employment arrangement.

The court held that Wheare did not have an employment relationship with Hi Trans Express. It found that the labour hire agency was the primary employer, and Hi Trans Express was merely a client of the agency. As such, Wheare's rights and protections were governed by the agreement between him and the labour hire agency, not Hi Trans Express. Consequently, Wheare's application for unfair dismissal remedies was dismissed. The court concluded that Wheare's employment status did not entitle him to the protections of the Fair Work Act against Hi Trans Express.

Orders