Markia Raganivatu v Australia Post

[2015] FWC 638

[2015] FWC 638

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Markia Raganivatu
v
Australia Post
(U2014/15188)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 27 JANUARY 2015

Application for relief from unfair dismissal.

[1] Mr Marika Raganivatu alleged that the termination of his employment by Australia Post was unfair.

[2] In his application Mr Raganivatu stated that he had been employed by IPA which he described as a recruitment agency to work for Australia Post since 2012. He said he commenced working as a permanent employee with Australia Post on 5 June 2014. The letter from Australia Post offering him permanent employment dated 4 June 2014 was attached to his application. That letter advised that he was employed on a fixed term contract from 5 June 2014 to 4 September 2014. Mr Raganivatu’s employment with Australia Post ended on 11 November 2014. Mr Raganivatu attached a letter of resignation signed by him on 11 November 2014 but in his application he alleged he had been bullied into signing the letter.

[3] Mr Raganivatu was sent a letter by the Commission on 28 November 2014 advising him that he had not been employed for the minimum employment period. 1 In this case the minimum employment period was six months. In response to that correspondence Mr Raganivatu advised that he wished to continue with this application.

[4] On 6 January 2015, directions were issued to Mr Raganivatu to file and serve material in support of his claim that he had served six months employment with Australia Post.

[5] In response Mr Raganivatu provided a letter from IPA advising that it had employed him from 12 June 2012 to 29 June 2014. The letter advised that Mr Raganivatu was contracted out to Australia Post and he was “a temp employee of IPA and was paid each week by IPA”.

[6] Section 397 of the Fair Work Act 2009 provides that the Commission must conduct a conference/hearing if there are contested facts. Here there are no contested facts and, as advised to Mr Raganivatu’s representative on 19 January 2015, I propose to deal with this application on the material before me.
Who was Mr Raganivatu’s employer?

[7] On the basis of the material before me Mr Raganivatu was employed by Australia Post from 5 June 2014. I am unable to conclude on the evidence before me, that despite the arrangement between Mr Raganivatu and IPA in the period he was “contracted out” to Australia Post, he was in fact and law Australia Post’s employee from June 2012.

[8] As Merkel J said in Damevski v Guidice: 2

“[173] In general, the courts have held that the interposition of a labour hiring agency between its clients and the workers it hires out to them does not result in an employee-employer relationship between the client and the worker: see Mason & Cox Pty Ltd v McCann (1999) 74 SASR 438; Skilled Engineering Pty Ltd v Gill (unreported, Full Court of the South Australian Supreme Court, King CJ, Cox and Bollen JJ, 11 July 1991); McMahon Services Pty Ltd v Cox (2001) 78 SASR 540; Swift Placements Pty Limited v Workcover Authority of New South Wales (Inspector May) [2000] NSWIRComm 9; (2000) 96 IR 69; Drake Personnel Ltd v Commissioner of State Revenue [2000] VSCA 122; [2000] 2 VR 635; Construction Industry Training Board v Labour Force Ltd [1970] 3 All ER 220; McMeechan v Secretary of State for Employment [1996] EWCA Civ 1166; [1997] ICR 549; Montgomery v Johnson Underwood Ltd [2001] EWCA Civ 318; [2001] ICR 819.”

Conclusion

[9] In making this decision I make no assessment of the merits of Mr Raganivatu’s claim. As Mr Raganivatu was not employed by Australia Post for the minimum employment period, he was not protected from unfair dismissal and his application is dismissed.

DEPUTY PRESIDENT

 1 Ss. 382 and 383 Fair Work Act 2009.

 2 (2003) 133 FCR 438.

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