Michael Jordon v Allstaff Australia Sydney Pty Ltd
[2022] FWC 1607
•23 JUNE 2022
| [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 shall receive and comply with day-to-day instructions issued by authorised representatives of Clients of the Employer so as to facilitate the performance of the contract for services between the Employer and any Client of the Employer.
k) The employment relationship exists or shall be created between the Employee and any Client of the Employer to whom the Employee may be assigned to perform work.
l) Any right, entitlement or benefit or privilege that accrues in respect of service will accrue in accordance with the relevant law that governs that service.
m) For a period of twelve (12) months from the cessation of the Employee’s last assignment, the Employee agrees that they will not accept a direct offer of employment whether temporary, contract or permanent, from any Client of the Employer or former Client of the Employer, to whom the Employee has been introduced without first notifying the Employer.
n) The Employee agrees that they will arrive at the location of their assignment no later than 10 minutes before actual start time, and agrees to notify the Employer immediately should they be unable to start on agreed time.
4. TERMINATION OF EMPLOYMENT
4.1 Unless otherwise agreed in writing, the Employee may terminate the employment relationship by giving one hour’s notice of his or her intention to terminate.”
On 18 June 2021 Mr Jordon badly fractured his ankle and was unfit for work for a long period of time. Mr Jordon’s injury was not work-related.
Mr Jordon diligently kept Allstaff informed of his recovery. On 1 November 2021 Mr Jordon advised that he would be fit to work three days per week from 15 November 2021 and then return to full duties, in Woolworths’ warehouse, from 6 December 2021. Allstaff were generally slow in responding to Mr Jordon’s updates but his indication on 1 November that he would be returning actually sparked some more specific activity from Allstaff.
On 5 November 2021 Allstaff sent Mr Jordon the following request by SMS:
“Morning, so our work/health safety officer needs a full report from your Specialist of your injuries. He may want to get you independently examined depending on the report. We may have to look at finding another host employer for you so we don’t aggravate your injury. As soon you get the report you can email it through to [email address]”.
[Emphasis added]
Mr Jordon promptly complied with this request and then heard very little from Allstaff despite several follow up enquiries.
On 16 November 2021 Allstaff sent an x-ray (originally provided by Mr Jordon) of Mr Jordon’s ankle to Dr Lieng, together with the following request:
“Morning Dr Lieng
This casual has had a significant out of work Ankle fracture that now has internal fixation (See below Xray). I am now concerned that he will aggravate this should we place him back in the role of a Woolies Pick / Packer. Your comments would be appreciated.
Regards
Greg Alvisio
National Workers Compensation & WHS Manager.”
On the same day Dr Lieng replied as follows:
“Ouch
I would assume that the ankle joint wont be 100% after this incident and he will likely have post‐fracture arthritis with reduced functional capacity. Picking wouldn’t be an appropriate job for him anymore”
Dr Lieng did not ever examine Mr Jordon nor does it appear that he ever sent any “report” to Allstaff other than the words in the above email.
Allstaff’s written submissions include the following:
“The respondent received medical advice that due to the Applicants injury there was a risk that if the Applicant was to return to the previous assignment there was a potential that the Applicant would aggravate his out of work injury and could suffer a significant workplace injury.
In line with the Respondent’s contractual obligations with the host employer, the Respondent ended the assignment of the Applicant at that host employer.
The Applicant was not terminated from his employment with the Respondent.
Pursuant to section 386 of the FW Act, the Applicant was not dismissed.”
The last day that Mr Jordon performed any work for Allstaff was 15 June 2021. The communication from June 2021 to November 2021 appears to assume that Mr Jordon was still assigned to the Woolworths site, though not performing any work because of his injury.
It was Allstaff’s decision in November or December 2021 to terminate Mr Jordon’s assignment to the Woolworths site.
On 3 December 2021 Allstaff sent the following message to Mr Jordon by SMS:
“Hi Michael, I’ve just received an email that due to your injury its not an appropriate job for you anymore due to being a potential risk for further injury. Sorry but your assignment has ended with primary connect. I have a contact at ability options, Hayley, who I can pass your number to her for future placement. Would you like me to do this?”
The reference to “primary connect” in the message is a reference to another intermediate service entity apparently associated with Woolworths and can be taken to be a reference to the assignment at the Woolworths site. The reference to “Ability Options” is a reference to an unrelated labour supply business that specialises in injured or disabled workers and with whom Allstaff has an ongoing cooperative relationship.
When asked in cross-examination whether the offer to contact Ability Options could be understood as an indication that there was no more work to be offered with Allstaff, Mr Wilford quickly and convincingly refuted that proposition. Mr Wilford said that the offer to supply Mr Jordon’s details to Ability Options was to assist him to find work that he might be able to do until work was found for him with Allstaff, and potentially work that he might be able to do whilst at the same time working for Allstaff. I accept Mr Wilford’s evidence in this regard and I do not find that the reference to passing on Mr Jordon’s number to a different labour hire firm was an indication to Mr Jordon that no more work would be offered to him with Allstaff.
Consideration
Mr Jordon alleges that Allstaff dismissed him in contravention of the general protection provisions of the FW Act. Ordinarily such matters are determined by a Court[1]. Before Mr Jordon can make an application to a Court he must apply to the Commission under s.365 for the Commission to deal with the matter.
Generally the Commission’s role in relation to applications under s.365 of the FW Act is to deal with such applications by way of conciliation or mediation under s.368. If the Commission is satisfied that all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful it must issue a certificate under s.368(3). Section 370 of the FW Act imposes a substantial restriction[2] upon applicants by preventing a general protections court application being made unless the Commission has issued a certificate under s 368(3)(a) in relation to the dispute.
The Full Court in Coles Supply Chain v Milford [2020] FCAFC 152, (2020) 300 IR 146 (“Milford”) made the following relevant observations about the Commission’s capacity to deal with applications under s.365 and antecedent disputes about dismissal:
(a)The FWC’s non-determinative powers to deal with a dispute under s.368 are only enlivened if an application is properly made under s.365. The proper making of an application under s.365 is an essential precondition to the FWC’s authority to perform its functions under s.368 (at [51]).
(b)a dispute about whether a person has been dismissed raises an antecedent issue going to the existence of the FWC’s authority to compel an employer to participate in its conciliation processes (at [65]).
(c)it is open for a respondent to assert that there has been no dismissal, which gives rise to a dispute on that question that falls to be determined under s.365 (at [67]).
(d)that dispute must be resolved before the FWC’s powers under s.368 can be exercised at all (at [67]).
(e)the FWC is entitled to determine the limits of its authority to deal with a dispute under s.368, although it has no authority to conclusively determine those limits (at [43]).
(f)in so determining the limits of its authority the FWC may determination matters of fact (at [71]).
(g)the Federal Court or the Federal Circuit Court has the power to judicially determine whether a person is entitled to make an application to the FWC (at [74]). The FW Act establishes alternative pathways for an applicant and prospective litigant and a court might decline to recognise an “application” or resulting certificate is valid when determining an objection to competency of a legal proceeding under s.370 of the FW Act (at [75]); and
(h)the determination by the FWC is not authoritative in the sense of being final. If the FWC errs in determining a question upon which its authority depends, it will commit jurisdictional error by wrongfully denying that it has the authority to “deal with the dispute” under s.368 of the FW Act (at [79]).
Allstaff alleges that Mr Jordon was not dismissed, which challenges Mr Jordon’s capacity to make a claim under s.365 of the FW Act. In this context I must determine the limits of my authority to deal with Mr Jordon’s claim and determine whether Mr Jordon is “a person [who] has been dismissed” within the meaning of s.365 of the FW Act.
Section 12, Definitions of the FW Act defines ‘dismissed’ by reference to s.386.
Section 386 exclusively defines the circumstances which give rise to a person being “dismissed” by an employer for the purposes of Part 3-2 Unfair Dismissals of the FW Act and for the purposes of Part 3-1 General Protections via s.12. [3] Section 386(1) is in the following terms:
“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.”
In NSW Trains v James[4] the majority found that “the expression ‘employment … has been terminated’ in s.386(1)(a) means termination of the employment relationship and/or termination of the contract of employment”.[5] In that matter Mr James was demoted, which was a measure permitted under NSW Trains’ enterprise agreement and also under transport regulations. The Full Bench ultimately found that Mr James had not been dismissed because Mr James’ contract was displaced by transport regulations “to the extent of any inconsistency” (at [123]). The Full Bench relevantly found:
“[120] The demotion of an employee exercised under a power in an industrial instrument or statute and in accordance with its terms will not constitute a dismissal for the purposes of s.386 of the FW Act, where the instrument provides that demotion does not constitute termination of employment. In such circumstances there has not been a termination at law because the instrument operates to preclude there being one in the circumstances and therefore the contract permitted the demotion...
…
[130] The existence of a power to demote in contract or other governing instrument is not necessarily determinative in all cases.
[131] A critical question in each case will be whether properly construed, the relevant instrument(s) provide that a demotion authorised by the instrument does not constitute termination of employment. Put simply, a demotion may not amount to a termination of employment for the purposes of Part 3-2 of the FW Act where the instrument permits the demotion and provides in effect that it is not a termination. This will require consideration of the terms of the specific instrument purportedly authorising the demotion to ascertain its effect in the particular case.”
Mr Jordon was not demoted. However the reasoning in NSW Trains v James is directly analogous, particularly in relation to considering the majority’s finding that the termination of a contract of employment could amount to a termination of employment for the purposes of s.386(1). In Mr Jordon’s case it is possible that the termination of the assignment at the Woolworths site was the termination of a contract of employment and therefore a dismissal, even if the ongoing employment relationship between Mr Jordon and Allstaff was not terminated.
Much depends, therefore, on the terms of the contract between Mr Jordon and Allstaff. Mr Jordon signed a written contract in 2017 and there is no suggestion that the terms of this contract were a sham or otherwise not applicable. Within the fine print of the contract its terms readily allow for the termination of particular assignments without terminating the contract of employment or the employment relationship. By its terms the contract continues unaltered even though one particular assignment has been terminated or, as the case may be, a new assignment is given.
In this context I cannot find that there was a termination of the relevant contract of employment, let alone the employment relationship. The terms of the contract specifically allow for the termination of individual assignments and the continuation of the employment relationship, and the continuation of the contract of employment itself. If there was an identifiable decision by Allstaff to not offer Mr Jordon any further assignments at any site, then circumstances would be very different, but on the evidence I cannot find that Mr Jordon has been dismissed.
This outcome appears unsatisfactory in light of Mr Jordon’s diligent attempts to continue his employment relationship with Allstaff and the apparent cursory assessment of Mr Jordon’s physical condition made by Dr Lieng. However Mr Jordon did not have strong security of tenure with Allstaff. That is, 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 nonetheless made proper attempts to provide Mr Jordon with further work, including by offering to liaise with Ability Options.
At the hearing Mr Jordon, quite understandably, asked rhetorically how long was he supposed to wait for Allstaff to provide him further work before he was entitled to call it a dismissal. That is, to the extent that Allstaff submits that there is still an employment relationship whereby Mr Jordon might be offered more work, how long must Mr Jordon go without any offer of work before the employment relationship can be regarded as finished?
The answer to that question seems to me to lie in the testing of Allstaff’s evidence and assertions that it was still prepared to meet its obligations under the contract and to provide work for Mr Jordon from time to time. On the evidence in this matter I cannot find, as a matter of fact, that Allstaff was no longer prepared to continue the employment relationship and the employment contract with Mr Jordon.
The Commission’s immediate task is to determine whether a dismissal took place at some point prior to the date Mr Jordon commenced his general protections claim. If no dismissal had occurred then there is no proper basis for Mr Jordon’s claim and the claim must be dismissed. In this regard the circumstances are indistinguishable from those recently found by the Full Bench in Shane John Varichak v COG Regional Team Pty Ltd[6] at [58]:
“In the context of the casual employment operating in this matter and the absence of a mutual obligation to offer and accept work, we do not consider that at the time of the GP application it can be established that the Appellant had been dismissed from his employment with the Respondent. There was neither the termination of an employment contract or the employment relationship at that point. We observe that this finding is confined to the specific circumstances of the nature of the casual employment and the timing of the application evident in this particular matter. Further, the continuation of the Respondent’s position not to offer shifts to Mr Varichak may have at some point changed the status of the relationship to the extent that a dismissal would result, but it had not at the relevant time.”
I all the circumstances I find that Mr Jordon was not dismissed and I must therefore dismiss his application.[7]
DEPUTY PRESIDENT
Appearances:
Mr M Lynch for the Applicant
Mr N Allen for the Respondent
Hearing details:
2022.
Sydney (By Video using Microsoft Teams)
April 28.
[1] Unless both parties agree to the Commission arbitrating the dispute under s.369 of the FW Act.
[2]Ward v St Catherine’s School [2016] FCA 790 at [3].
[3] Shane John Varichak v COG Regional Team Pty Ltd[2022] FWCFB 37 applying Coles Supply Chain v Milford (2020) 300 IR 146, [2020] FCAFC 152; Fair Work Ombudsman v Austrend International (2018) 273 IR 439, [2018] FCA 171 and Morris v Allied Express Transport [2016] FCCA 1589 at [116] and [117].
[4] [2022] FWCFB 55.
[5] Ibid at [45].
[6] [2022] FWCFB 37.
[7] PR742981.
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