Michael Jordon v Allstaff Australia Sydney Pty Ltd - [2022] FWC 1607

[2022] FWC 1607

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Michael Jordon
v

Allstaff Australia Sydney Pty Ltd

(C2021/8658)

DEPUTY PRESIDENT EASTON

SYDNEY, 23 JUNE 2022

Application to deal with contraventions involving dismissal – jurisdictional objection – labour hire – whether the applicant was dismissed from his employment – terms of written contract – assignments – the end of one assignment was not a dismissal – application dismissed.

Mr Michael Jordon was employed by AllStaff Australia Pty Ltd. AllStaff supplies labour to a Woolworths warehouse at Wyong via another entity. In June 2021 Mr Jordon badly injured his ankle outside of work and took several months to recover. When he received a medical clearance to return, Allstaff decided that he posed an unacceptable risk of further injury and terminated his assignment to the Woolworths site. Allstaff tried to assist Mr Jordon to find an alternative placement but to no avail.

Mr Jordon alleges that he was dismissed in contravention of the general protection provisions of the Fair Work Act 2009 (Cth) (the FW Act). AllStaff Australia Pty Ltd (Allstaff) deny that Mr Jordon was dismissed but say in the alternate any dismissal that occurred took effect in June 2021 and therefore that Mr Jordon’s claim was filed many months out of time.

Background

In or around November 2016 Mr Jordon commenced working at the Woolworths’ warehouse site at Wyong. On commencement he was employed by Chandler MacLeod, a labour hire company. In January 2017 Mr Jordon says he was informed that Allstaff was taking over the contract to supply labour to Woolworths at that site and that Allstaff would be his new employer.

On 30 April 2017 Mr Jordon signed a written employment agreement in very fine print that included the following terms:

“3. EMPLOYMENT STATUS AND ENGAGEMENT
3.1 The Employee is employed as a casual on-hired employee, which means that:
a) The Employee is employed as a casual employee.
b) The Employee receives a casual loading, in lieu of paid leave, redundancy pay and other entitlements associated with permanent employment.
c) This Agreement governs the terms and conditions of employment for every assignment performed by the Employee for the Employer.
d) Termination of an assignment by the Employer does not of itself constitute termination of employment.
e) The Employer may direct where and how the Employee shall perform work on any particular assignment.
f) The Employer may change or terminate assignments of the Employee without reason and the Employee has no right to ongoing employment on any particular assignment.
g) There is no obligation on the Employer to offer future or ongoing assignments to the Employee.
h) There is no obligation on the Employer to offer the same or similar terms and conditions of assignment when commencing a new assignment, or a new assignment position within an existing assignment.
i) The Employer retains ultimate control of the Employee in relation to the performance of work on assignment or otherwise.
j) The Employee…

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 Michael Jordon v Allstaff Australia Sydney Pty Ltd

Details

AGLC: Michael Jordon v Allstaff Australia Sydney Pty Ltd [2022] FWC 1607
Case: [2022] FWC 1607
Decision Date: 23 JUNE 2022

CaseChat Overview and Summary

Michael Jordon was employed by AllStaff Australia Pty Ltd, which supplied labour to a Woolworths warehouse at Wyong. Mr Jordon alleges that he was dismissed in contravention of the general protection provisions of the Fair Work Act 2009 (Cth). AllStaff denies that Mr Jordon was dismissed. The Court must determine whether the termination of Mr Jordon's assignment at the Woolworths site constituted a dismissal within the meaning of s.365 of the Fair Work Act 2009 (Cth). The Court found that the termination of a particular assignment under the terms of Mr Jordon's employment agreement did not constitute a dismissal within the meaning of s.386 of the Fair Work Act 2009 (Cth). The Court found that Mr Jordon's employment was fundamentally casual and AllStaff was under no obligation to offer work at any particular time or to continue to place Mr Jordon at the Woolworths site. AllStaff made proper attempts to provide Mr Jordon with further work, including by offering to liaise with Ability Options. The Court found that there was no dismissal and dismissed Mr Jordon's application.

Orders