Michelle Fernance v Reliance Workforce Pty Ltd, Kristen Woodfield
[2024] FWC 3121
•12 NOVEMBER 2024
| [2024] FWC 3121 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Michelle Fernance
v
Reliance Workforce Pty Ltd, Kristen Woodfield
(C2024/4955)
| COMMISSIONER HUNT | BRISBANE, 12 NOVEMBER 2024 |
Application to deal with contraventions involving dismissal – jurisdictional objection – whether there has been a dismissal – applicant employed by labour hire company Respondent claims Applicant still employed
On 18 July 2024, Ms Michelle Fernance made an application to the Fair Work Commission (the Commission) under s.365 of the Fair Work Act 2009 (the Act) to deal with a general protections dispute involving dismissal. Ms Fernance stated that she had been dismissed from her employment with Reliance Workforce Pty Ltd (Reliance Workforce) and Ms Kristen Woodfield (collectively the Respondents) on 15 July 2024.
In its Form F8A – Response to general protections application, the Respondents objected to the application on the jurisdictional ground that Ms Fernance was not terminated on the employer’s initiative pursuant to s.386 of the Act.
Following the Full Court of the Federal Court decision of Coles Supply Chain Pty Ltd v Milford,[1] the Commission must determine whether Ms Fernance was dismissed before it can exercise powers under s.368 of the Act to deal with a dispute about whether Ms Fernance was dismissed in contravention of the general protections provision.
Legislative Provisions
Section 365 of the Act provides as follows:
“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 meaning of “dismissed” is provided at s.386 of the Act:
“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 employer or her employer.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”
This decision deals only with the jurisdictional objection to be determined: that is, was Ms Fernance dismissed from her employment?
Application in respect of Ms Kristen Woodfield
I am satisfied that at no point in time was Ms Fernance employed by Ms Kristen Woodfield and she therefore cannot have been dismissed by Ms Woodfield. Accordingly, the application against Ms Woodfield is dismissed.
Application in respect of Reliance Workforce
Reliance Workforce contends that Ms Fernance is a casual employee and had been placed at its client’s premises. It contends that it has never dismissed Ms Fernance, and she remains ‘on the books’.
Hearing
The matter was heard before me on 16 October 2024 by video using Microsoft Teams. Ms Fernance represented herself. Reliance Workforce was granted leave to be represented by Mr Cameron Niven of Tailored Legal. The following people gave evidence and were cross-examined:
· Ms Fernance
· Ms Woodfield
Summary of Ms Fernance’s submissions and evidence
Ms Fernance completed an application to work for Reliance Workforce on 7 May 2024. She has a crushed disk in her back and has limitations on the kind of work she can perform. She could, however, safely perform guard work for Reliance Workforce’s client, Metcash. Ms Fernance was referred by Metcash to Reliance Workforce to register with Reliance Workforce so that she could perform work as a labour hire casual employee at Metcash.
As I understand it, Ms Fernance commenced working on or around 16 May 2024 at Metcash.
While performing work at Metcash, Ms Fernance reported to Ms Kita Adams, Gatehouse Supervisor. Ms Adams is a Metcash employee.
Ms Fernance was informed that she was rostered to work 17 – 19 July 2024. On 15 July 2024, Ms Fernance received the following message:
“Here’s your roster for Monday, 15 Jul to Sunday, 21Jul at Reliance Workforce PTY LTD
Message from your manager:
Please note cancellation of roster – Please note Metcash have advised you are no longer required for site – Thanks Kristen Reliance Workforce”
On receipt of that message, Ms Fernance engaged in the following text message exchange with Ms Adams of Metcash:
Ms Fernance: Hi Kita I just got a message my Tanda shifts have been changed to no shifts this week
Ms Adams:Hi hun, I’m out at dinner. Your best to contact reliance and discuss with them
Ms Fernance: I just need to know if I still have a job
Ms Adams:I can’t make that call hun, give them a call first thing in the morning of flick them an email through [email]
If you email them tonight, someone will respond tomorrow
Ms Fernance: Surely you know something as you organise the rosters
Ms Adams:I am bound to follow policy and procedure as a supervisor at Metcash. I only deal with the permanents hun, you will have to discuss further with reliance as you are their employee.
Ms Fernance submits that following this email, despite not resigning, she received no further work nor communication from Reliance Workforce. She submits that this suggests Reliance Workforce no longer intended to continue her employment.
Ms Fernance stated that when she performed work at Metcash, she did not wear Reliance Workforce branded attire. She had her own hi-vis attire.
In evidence given during the Hearing, Ms Fernance confirmed that she spoke with Ms Woodfield twice on 15 July 2024. Ms Woodfield told her she had engaged in inappropriate behaviour. Ms Fernance ended the telephone conversation. Ms Fernance rang back and asked who her boss was, to which Ms Woodfield stated, “Kita Adams” and said she no longer required her back on site.
Ms Fernance stated that she would be content in performing office jobs given her physical limitations.
Summary of Reliance Workforce’s submissions and evidence
Reliance Workforce submitted that Ms Fernance has not been dismissed and remains employed by Reliance Workforce. It maintains that a casual employee ending their placement at a worksite does not constitute the end of their employment. It submitted that it did not take any action to terminate Ms Fernance’s employment.[2] Reliance Workforce noted that Ms Fernance has not suggested that she has resigned her employment.
As Reliance Workforce did not intend to cause Ms Fernance to resign and Ms Fernance has not resigned, Reliance Workforce submitted that she has not been dismissed.
Witness statement of Ms Woodfield
Ms Woodfield stated that Ms Fernance was employed by Reliance Workforce at all relevant times and at no point was Ms Woodfield, as a natural person, her employer.
Ms Fernance remains on the employment database of Reliance Workforce. Screenshots were provided as evidence that she is still listed as an employee and her employment has not been listed as having ended.
Ms Fernance was referred to Reliance Workforce by an employee of Metcash. Reliance Workforce sought approval from Metcash’s safety team in respect of Ms Fernance’s medical disclosures, and she was permitted to work at Metcash.
On or around 15 July 2024, Ms Adams contacted Ms Woodfield and stated that Ms Fernance was no longer required on the Metcash site. Ms Woodfield does not consider this to be an unusual request.
In evidence given during the Hearing, Ms Woodfield stated that there are three labour hire agencies on site at Metcash. Reliance Workforce employed two other casual employees in the gate house at Metcash. Since Ms Fernance has not been required to work at Metcash, Reliance Workforce has not been requested to supply any other employees to perform work at the gate house.
Ms Woodfield and Ms Fernance had at least two telephone conversations on 15 July 2024. Ms Woodfield said the first one was around 20 minutes in length at around 12:00pm. When that call ended, Ms Fernance rang again and informed Ms Woodfield that she loves her job.
Ms Woodfield stated that Reliance Workforce typically places its employees in labour-intensive roles where employees are often required to lift in excess of 25 kilograms, often outdoors. It did not, on or around 15 July 2024 have administrative roles, nor did it have any of those types of roles at the time of the Hearing.
Ms Woodfield stated that Reliance Workforce has considered Ms Fernance for every role which aligns with her skillset, however given Ms Fernance’s physical limitations, she has been unable to be placed in a role to-date.
Consideration
Section 386 of the Act provides that a person has been dismissed in several circumstances, including when their employment has been “terminated on the employer’s initiative”. Such a situation refers to a termination that is brought about by an employer and which is not agreed to by the employee.[3]
When analysing whether there has been a “termination at the initiative of the employer” for the purpose of s.386(1)(a) of the Act, it is necessary for the analysis to be conducted by reference to termination of the employment relationship. It is not conducted by reference to the termination of the contract of employment in operation immediately before the cessation of the employment.[4]
Although applied under the previous Act,[5] the following approach of the Full Bench of the Australian Industrial Relations Commission in O’Meara v Stanley Works Pty Ltd[6] in my view remains generally apposite to the consideration of s.386(1) of the Act:
“[21] In this Commission the concepts have been addressed on numerous occasions and by a number of Full Benches. In Pawell v Advanced Precast Pty Ltd (Pawel) a Full Bench said:
‘[13] It is plain that the Full Court in Mohazab considered that an important feature in the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is to be noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee. In the instant case the uncontested factual findings are that the applicant had for almost the whole of his employment performed welding duties; that there was no objective threat to his health and safety involved in the requirement that he undertake welding duties so long as it was not on a continuous basis and that the welding he was required to do was not continuous.’
[22] In the Full Bench decision of ABB Engineering Construction Pty Ltd v Doumit (ABB Engineering) it was said:
‘Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that the line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer’s conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer’s conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.’
[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of the Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether ‘the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.” (footnotes omitted).
A more recent Full Bench reinforced the relevance of the above approach in Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Tavassoli[7] in the following terms:
“[33] Notwithstanding that it was clearly established, prior to the enactment of the FW Act, that a ‘forced’ resignation could constitute a termination of employment at the initiative of the employer, the legislature in s.386(1) chose to define dismissal in a way that retained the ‘termination at the initiative of the employer’ formulation but separately provided for forced resignation. This was discussed in the Explanatory Memorandum for the Fair Work Bill as follows:
‘1528. This clause sets out the circumstances in which a person is taken to be dismissed. A person is dismissed if the person’s employment with his or her employer was terminated on the employer’s initiative. This is intended to capture case law relating to the meaning of ‘termination at the initiative of the employer’ (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200).
1529. Paragraph 386(1)(b) provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Conduct includes both an act and a failure to act (see the definition in clause 12).
1530. Paragraph 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations:
· where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or
· where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign.’
[34] It is apparent, as was observed in the decision of the Federal Circuit Court (Whelan J) in Wilkie v National Storage Operations Pty Ltd, that ‘The wording of s.386(1)(b) of the Act appears to reflect in statutory form the test developed by the Full Court of the Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No. 1) and summarised by the Full Bench of the Australian Industrial Relations Commission in O’Meara v Stanley Works Pty Ltd’ (footnotes omitted). The body of pre-FW Act decisions concerning ‘forced’ resignations including the decisions to which we have earlier referred, has been applied to s.386(1)(b): Bruce v Fingal Glen Pty Ltd (in liq); Ryan v ISS Integrated Facility Services Pty Ltd; Parsons v Pope Nitschke Pty Ltd ATF Pope Nitschke Unit Trust.” (footnotes omitted)
Accordingly, the general principles to be applied in this case are well settled. Stated succinctly, they include:
· the question as to whether the resignation was forced within the meaning of the Act is a jurisdictional fact that must be established by the applicant;
· a termination at the initiative of the employer involves the conduct (or course of conduct) engaged in by the employer as the principal constituting factor leading to the termination. There must be a sufficient causal connection between the conduct and the resignation such that it ‘forced’ the resignation;
· the employer must have engaged in some conduct that intended to bring the employment relationship to an end or had that probable result;
· conduct includes an omission;
· considerable caution should be exercised in treating a resignation as other than voluntary where the conduct of the employer is ambiguous, and it is necessary to determine whether the employer’s conduct was of such a nature that resignation was the probable result such that the employee had no effective or real choice but to resign; and
· in determining the question of whether the termination was at the initiative of the employer, an objective analysis of the employer’s conduct is required.
Was Ms Fernance dismissed?
Ms Fernance worked approximately two months as a labour hire casual employee at her employer’s client’s premises, Metcash. On the evidence before the Commission, Metcash utilises three labour hire companies to provide personnel. Metcash sourced Ms Fernance and requested she register with Reliance Workforce. Metcash was aware of Ms Fernance’s physical limitations before she commenced working at its site.
At various times, labour hire companies are typically informed that their employees are not required to return to work at their clients’ premises. This was such an occasion and after a relatively short period of time. I am satisfied on the evidence before the Commission that Ms Fernance remained an employee of Reliance Workforce and Ms Woodfield attempted to find other suitable roles in which to place Ms Fernance. She was unable to do so on account of the industrial roles Reliance Workforce typically places, and Ms Fernance’s physical limitations making it unsuitable for her to be placed into industrial roles.
I am satisfied that the employment relationship between Ms Fernance and Reliance Workforce continues to exist and if Reliance Workforce has suitable roles to offer to Ms Fernance, it will continue to do so.
Conclusion
For the reasons set out above, I have determined that Ms Fernance is not a person who has been dismissed from employment. The jurisdictional objection raised by Reliance Workforce is upheld.
I have already determined that Ms Woodfield as a natural person has not dismissed Ms Fernance as she was never employed by Ms Woodfield.
I must dismiss the application for lack of jurisdiction. An Order [PR781186] will be issued together with this decision.
COMMISSIONER
Appearances:
M Fernance for the Applicant.
C Niven of Tailored Legal for the Respondents.
Hearing details:
2024.
Video using Microsoft Teams.
16 October.
[1] [2020] FCAFC 152.
[2] Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645.
[3] Khayam v Navitas English Pty Ltd T/A Navitas English [2017] FWCFB 5167 at [75]; see also Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200.
[4] Khayam v Navitas English Pty Ltd T/A Navitas English [2017] FWCFB 5167 at [75].
[5] Workplace Relations Act 1996 (Cth).
[6] [2006] AIRC 496 (PR973462).
[7] [2017] FWCFB 3491
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