Mehdi Muhammad Arif v Jobwire Australia Pty Ltd
[2023] FWC 2875
•3 NOVEMBER 2023
| [2023] FWC 2875 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Mehdi Muhammad Arif
v
Jobwire Australia Pty Ltd
(C2023/5244)
| COMMISSIONER WILSON | MELBOURNE, 3 NOVEMBER 2023 |
Application for the Commission to deal with a dismissal dispute under s.365 of the Act –jurisdictional objection that there was no dismissal – jurisdictional objection dismissed.
This decision deals with the question of whether Mr Mehdi Muhammad Arif (the Applicant) was “dismissed” within the meaning of the Fair Work Act 2009 (the Act) from his employment with Jobwire Australia Pty Ltd (Jobwire or the Respondent) and thus eligible to make a general protections application involving dismissal to the Fair Work Commission (the Commission).
Jobwire objects to Mr Arif’s application on the basis that there was no dismissal as defined. With such objection having been made the Commission is required to determine whether the applicant was dismissed before it can proceed any further.
The objection was the subject of a hearing before me on Tuesday, 31 October 2023 at which Mr Arif appeared on his own behalf. Mr Mark Hornsey, Regional Manager - Victoria employed by Jobwire represented the Respondent.
For the reasons set out below, I find Mr Arif was dismissed within the meaning of the Act.
RELEVANT LEGISLATION
Section 365 of the Act outlines when the Commission can deal with a general protections application involving dismissal:
“365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”
The term “dismissed” is defined in s.12 of the Act by reference to s.386, which provides this definition, so far as is relevant:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
(2) [omitted]
(3) [omitted].”
The Commission’s usual process with general protections matters is to deal with the dispute by conducting a conciliation conference by a staff conciliator. If it is satisfied that all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful, the Commission will issue a certificate that allows the applicant to commence proceedings in a court (s.368(3)) or by arbitration in the Commission if consent is given by each party (s.369). However, in an application where the respondent denies that it dismissed the applicant and objects to the application on this basis, the Commission is required to determine whether the applicant was dismissed.[1]
Consistent with the Commission’s usual practice on these matters[2], this matter has been allocated to me to determine whether or not there was a dismissal. A person must have been dismissed to be entitled to make a general protections dispute application and before the Commission can exercise powers under s.368 to deal with a dispute.[3]
BACKGROUND
Mr Arif made a general protections application involving dismissal to the Commission pursuant to s.365 of the Act on Monday, 28 August 2023. The Respondent to the Application is Jobwire Australia Pty Ltd. Jobwire is a recruitment and labour hire business.
Mr Arif applied for and was recruited for available roles at a Jobwire client host site, Steel Mains. He applied online to specific advertisements through Seek, on 18 June 2023 and 23 June 2023.
Mr Arif was offered and accepted a Production Worker role at Jobwire’s client host site, Steel Mains, on a casual basis commencing Monday, 3 July 2023. Before that date he accepted the terms of an online Employee Agreement and agreed he would undertake a pre-employment medical. He also asked whether there was an expiry for the Steel Mains assignment and was told there was not, and that the assignment was ongoing.[4]
Mr Arif's amended application asserts that he was notified of his dismissal on Monday, 14 August 2023.[5]
The Employment Agreement between Jobwire and Mr Arif provides:
“1) My employment with JobWire Australia Pty Ltd is on a casual basis. I understand I may accept or reject any offer of employment made by JobWire Australia, and upon completion of an assignment, JobWire Australia is under no obligation to offer further assignments to me.”
CONSIDERATION
The matter for determination in this decision is whether Mr Arif has been “dismissed” within the meaning given to that word by s.386 of the Act. The enquiry to be made in that regard is whether Mr Arif’s employment with Jobwire was “terminated on the employer’s initiative” (s.386(1)(a)), or whether he resigned from his employment “but was forced to do so because of conduct, or a course of conduct, engaged in by” Jobwire (s.386(1)(b)).
In Mohazab v Dick Smith Electronics Pty Ltd (No 2)[6] it was recognised that a termination will be at the initiative of the employer where the act of the employer results directly or consequentially in the termination of employment – that is had the employer not taken the action, the employee would have remained in employment; and the employment is not voluntarily left by the employee.
The acts committed or undertaken by an employer in relation to a termination of employment are not the only points of consideration. It is also necessary to consider the circumstances giving rise to the termination; the seriousness of the issues involved; and the respective conduct of the employer and employee.[7]
A distinction must also be made in this case between a labour hire employee who loses their assignment to a particular host employer and someone who loses their employment in entirety with no prospect of reassignment. It is well accepted that a labour hire employer does not necessarily have a valid reason for dismissal based on the employee’s capacity.[8]
Jobwire argues that the Commission has no jurisdiction to deal with Mr Arif’s claim because no dismissal occurred. It argues that Mr Arif remains “active on our System and will continue to consider him for future employment moving forward until he advises otherwise.”[9]
Mr Arif claims that his employment was terminated as he reported an underpayment issue at his host employer.[10]
Shortly stated, the following is a distillation of the submissions of both parties.
The Applicant’s case
Mr Arif submits that he received a telephone call from Jobwire Account Manager Mr Jake Bartolo on Monday, 7 August 2023 during which he was informed that the client he was working for, Steel Mains “terminated me and didn’t want me onsite anymore due to “attitude issues” and “performance issues””. Mr Arif recalls being informed by Mr Bartolo that he did not agree with Steel Mains decision to end the assignment and advised Mr Arif that he would be offered alternate work since Jobwire had many other clients.[11]
Mr Arif says that he raised an issue with an underpayment of 1-hour of overtime for work performed on Wednesday, 12 July 2023 at his assignment with Steel Mains and was advised that he would not be paid for the overtime as it could not be verified that he had worked the additional hour. Mr Arif provides the following timeline of events:
On 12th July, Mr Arif reported to the Respondent through a text message that he had forgotten to clock out that day and his finish time was one hour later as he was required to stay back by the team leader.
On or about 20 July, Mr Arif lodged a complaint to the Respondent that he was not paid for the one hour of overtime. Mr Arif says he was told it would be corrected.
On or about 26-27 July, Mr Arif reported the issue of non-payment of overtime again through a telephone conversation.
Between 7-13 August, Mr Arif had several conversations with Mr Bartolo and made a complaint that he was not paid for the overtime.
On 14 August 2023, Mr Arif sent an email to Mr Bartolo again raising the overtime complaint, seeking that Mr Bartolo return to him as soon as possible. After several further exchanges Mr Bartolo confirmed no overtime payment would be made as the site could not verify the time had been worked, after which there was the following exchange:
·From Mr Arif:
“Hi Jake,
Thanks for your response. I'll forward this issue to fairwork.
Can you please confirm if there's any other work that you can offer me at this time or not?
Thanks.” (underlining added)
·From Mr Bartolo;
“Hi Mehdi,
You are welcome to go to fairwork.
You were terminated for not following processes, poor performance and attitude issues, your hours can't be verified because you yet again did not follow process.
Jobwire will not be offering you alternative work at this time.” (underlining added)
Later in the day on Monday, 14 August 2023 Mr Bartolo sent Mr Arif an email confirming it was the Applicant’s responsibility to sign in and out with the time clock system and as Steel Mains were unable to verify that the extra hour was worked, it would not be paid. He also says that Jobwire would email him with a list of potential work assignments which did not occur and when he queried redeployment opportunities, he was advised that he would not be provided alternative work from Jobwire “at this time”.
Mr Arif’s amended application submits that he was terminated from his employment with Jobwire on Monday, 14 August 2023 and that prior to that date he did not have an indication that he would not be redeployed to alternative clients. In the alternative if it is not found that the Respondent terminated his employment, Mr Arif submits that by not being redeployed to an alternative client that he suffered a significant reduction in his working hours and wages.[12]
The Respondent’s case
Jobwire submit that Mr Arif has not been terminated and his employee file remains active.[13] Mr Arif was advised he remained an active employee on Jobwire’s database and would be offered suitable alternative work when it became available. It submits that Mr Arif has not been terminated from his employment with Jobwire rather he has been excluded from working with one of their clients, Steel Mains. Jobwire was instructed by its client Steel Mains to end Mr Arif’s assignment with them immediately.[14]
In response to Mr Arif’s claim of unpaid overtime Jobwire submits that it acted upon Mr Arif’s complaints and contacted Steel Mains about the issue. Jobwire submits that it requested Mr Arif provide the client contact (Host Site Coordinator) that authorised overtime and/or could verify the time worked. Jobwire had not been provided a name by Mr Arif through the investigation process.
Steel Mains was not able to verify Mr Arif’s claim of hours worked as he failed to clock out at the end of his shift through the electronic clock system.[15] As the hours worked could not be verified, he was not paid for the hour of overtime.
On Monday, 7 August 2023 at 7:49 AM a person in Steel Mains contacted two people in Jobwire, Mr Bartolo and Ms Gervasi and asked them to inform Mr Arif “that he is no longer required at Steel Mains effective immediately”. At 9:18 AM Mr Bartolo, who was a Jobwire Account Manager confirmed that the request had been actioned and that Mr Arif would not return to Steel Mains.[16]
Jobwire submits that when it notified Mr Arif that it did not have any alternative work to offer Mr Arif at this time, that “[t]he comment of “not at this time” is very relevant. As at that time Jobwire Australia did not have open roles to fit Mr Mehdi Muhammad Arif’s background and or location and pay requirements.”[17] It submits that at no stage has it advised Mr Arif that he would not be considered for future roles. Jobwire also argue that when Mr Bartolo wrote to Mr Arif that he was “welcome to go to fairwork” that such displays comfort the company has “done as much as possible with the information provided by the employee”.[18]
Jobwire says that it is not reasonable for Mr Arif to expect it to provide him with ongoing employment opportunities and it is reasonable for Mr Arif to source alternative employment whilst Jobwire endeavours to find alternative deployment opportunities. Jobwire offered Mr Arif an assignment on Monday, 25 September 2023 which Mr Arif declined. Jobwire continues to keep Mr Arif active on its system and will continue to consider him for future assignments.
A dismissal at the employer’s initiative is where the employer’s actions directly and consequently result in the termination of the employment relationship, and had the employer not taken such action, the employee would have remained in employment.[19]
My conclusion is that on balance the employer’s direct and consequential actions resulted in a termination of employment.
In the course of his dispute with Jobwire about an overtime claim, on Monday, 14 August 2023, a week after being moved away from the Steel Mains assignment Mr Arif pointedly asked Mr Bartolo “Can you please confirm if there's any other work that you can offer me at this time or not?”. Mr Bartolo, equally pointedly responded “Jobwire will not be offering you alternative work at this time”. There is little doubt from this exchange that Mr Bartolo was answering a reasonable question from an employee having been moved on from their assignment about when and where they may be offered further work and that his answer was that no offer would be made. The phrase at the end of the sentence “at this time” does not act as a qualifier and is plainly redundant. Had Mr Bartolo intended to say “we don’t have anything just now, but there might be in a month” the first part of his sentence would not be as adamant that “Jobwire will not be offering you alternative work”.
Viewed objectively Mr Bartolo communicated to Mr Arif that further assignments would not be offered.
The above email exchange was on Monday, 14 August 2023 and on Monday, 28 August 2023 Mr Arif commenced his general protections application.
On Tuesday, 5 September 2023 Mr Hornsey “reached out” to Mr Arif “in an endeavor to work through the issues and resolve, coming to an amicable arrangement”. In that communication Mr Hornsey says that he reinforced to Mr Arif that his file was still active.[20] On Monday, 25 September 2023 Jobwire offered an assignment to Mr Arif which he rejected as he had found alternative work by that time.[21]
While I take account of these matters they do not cause me to find that what took place was not a dismissal. Mr Hornsey describes the context of the 5 September 2023 approach being a means of resolving and coming to an amicable agreement. Plainly such was for the purposes of risk mitigation rather than reactivating an ongoing employment relationship. The later job offer needs to be seen in that light as well.
On the material before me, I am satisfied that the Applicant was dismissed within the meaning of s.386(1)(a) and that the Respondent’s jurisdictional objection has not been made out.
CONCULSION
Having determined Mr Arif was dismissed, he is entitled to apply under s.365 of the Act for the Commission to deal with his dismissal dispute.
The parties will shortly be contacted by my Chambers to arrange a conciliation of the application.
COMMISSIONER
Appearances:
Mr M. Arif for himself
Mr M. Hornsey for the Respondent
Hearing details:
2023.
Melbourne (via video conference);
31 October.
[1] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152, [67]; Lipa Pharmaceuticals Ltd v Marouche[2023] FWCFB 101, [23].
[2] Following the decision in Lipa Pharmaceuticals Ltd v Marouche[2023] FWCFB 101 the Commission changed its case management practices from 1 June 2023 for General Protections cases involving dismissal where certain jurisdictional issues arise.
[3] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152, [54].
[4] Applicant Document Bundle attached to Submissions email, filed 20 October 2023, appearing at Digital Court Book, p.35.
[5] Email from Applicant amending Items 3.1 and 3.3 of Form F8 Application, 8 September 2023, appearing at Digital Court Book, p.22
[6] (1995) 62 IR 200, 205.
[7] Pawel v Advanced Precast Pty Ltd (unreported, AIRCFB, Polites SDP, Watson SDP and Gay C, 12 May 2000).
[8] Tasmanian Ports Corporation Pty Ltd t/a Tasports v Mr Warwick Gee, [2017] FWCFB 1714, [34].
[9] Respondent Outline of Submissions on Jurisdictional Objection, 6 October 2023.
[10] Form F8 General Protections Application Involving Dismissal, 28 August 2023, item 3.3.
[11] Ibid, item 3.1.
[13] Form F8A Response to General Protections Application, 8 September 2023, item 5.1.
[14] Ibid.
[15] Ibid.
[16] Email from Steel Mains to Jobwire dated 8 September 2023, appearing at Digital Court Book, p.59
[17] Respondent Outline of Submissions on Jurisdictional Objection, 6 October 2023.
[18] Ibid.
[19] Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200, 205.
[20] Form F8A Response to General Protections Application, 8 September 2023, item 5.1.
[21] Applicant Outline of Submissions on Jurisdictional Objection, 20 October 2023; Respondent Outline of Submissions on Jurisdictional Objection, 6 October 2023.
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