Mathew Sharp v Glen Eira City Council

[2024] FWC 1985

[2024] FWC 1985

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Mathew Sharp
v

Glen Eira City Council

(C2024/2017)

DEPUTY PRESIDENT BELL MELBOURNE, 26 JULY 2024

Application to deal with contraventions involving dismissal – labour hire employee - not an employee of the respondent - no dismissal - application dismissed.

1. The applicant, Mr Mathew Sharp, has applied under s 365 of the Fair Work Act 2009 (Cth) (the Act) for the Fair Work Commission (Commission) to deal with a general protections dispute involving dismissal.

1. The named respondent, Glen Eira City Council (the Council), filed an F8A Response to the Application. Among other matters, the Council says it was not the employer of Mr Sharp.

1. By sections 12 and 386 of the Act, a “dismissal” is defined by reference to “employment”. The respondent says that, at all times, the only employment relationship involving Mr Sharp was between him and a recruitment agency ‘Hays’. Accordingly, the respondent contends there was no employment relationship between Mr Sharp and the Council, therefore, no “dismissal” for the purposes of s 365 of the Act. Consistent with the Council’s position, its Form F8A response attached correspondence with Hays indicating a service arrangement between Hays and the Council, one the one hand, and an employment relationship between Hays and Mr Sharp on the other.

1. I issued directions requiring Mr Sharp to provide copies of the following:

1. Any employment contract he has with Hays and the two most recent payslips he has been issued by Hays;
2. Any employment contract he says has with Council and the two most recent payslips with it;
3. Any explanation as to why Mr Sharp considered he was employed by the Council if the only available documentation related to Hays.

1. In response to the directions issued, Mr Sharp filed various documents. It is unnecessary to summarise them but they each pointed solely to his employment arrangement being with Hays and not with the Council.

1. It is sufficient to note the ‘Pay Advice’ documents, issued by Hays Specialist Recruitment (Australia) Pty Ltd, to Mr Sharp. There were no payslips from the Council. Another document from Hays stated it “confirm[s] the conditions of the casual assignment” and identifies in clear terms that the client is the Council. But under the section “Conditions of employment” it commences “You are engaged and paid as a casual employee of Hays. …”

1. The parties agreed that I could determine the matter ‘on the papers’.

1. I have considered the submissions made by Mr Sharp. However, the documentation provided makes it perfectly clear that there was no relationship of employment between him and the Council. The Council was the client, not the employer. Hays was the employer.

1. As Mr Sharp is not an employee of the respondent, he was not “dismissed” by it. Accordingly, his application must be dismissed. An order[1] to that effect will be issued with this decision.

DEPUTY PRESIDENT

Hearing details:

Determined on the papers.

[1] PR777555.

Printed by authority of the Commonwealth Government Printer

<PR777556>