Mr Brett Robin Gibson v HVA Technical Services Pty Limited
[2022] FWC 3056
•22 NOVEMBER 2022
| [2022] FWC 3056 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Brett Robin Gibson
v
HVA Technical Services Pty Limited
(C2022/3631)
| DEPUTY PRESIDENT BINET | PERTH, 22 NOVEMBER 2022 |
Application to deal with contraventions involving dismissal
On 20 June 2022, Mr Brett Robin Gibson (Mr Gibson) filed an application (Application) pursuant to section 365 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging that HVA Technical Services Pty Limited (HVA) contravened the general protection provisions of the FW Act by dismissing him from his employment.
On 27 July 2022 HVA filed a Form F8A – Response to General Protections Application alleging Mr Gibson was not dismissed by HVA (Jurisdictional Objection).
On 29 September 2022, a staff conciliator conducted a conference between Mr Gibson and HVA in an attempt to resolve the matter. The parties were unable to come to a resolution and on 10 October 2022 the Application was allocated to my chambers.
In Coles Supply Chain Pty Ltd v Milford[1] (Coles Decision) the Full Court of the Federal Court held that where a respondent submits that the applicant to a section 365 application was not dismissed, as is the case here, the FWC must first determine whether the person was dismissed.
On 20 October 2022 my Chambers attempted to contact Mr Gibson to confirm if he wished to continue to pursue the Application but he did not answer the telephone number he provided in his Application and did not return the voice mail message left for him.
Directions for the filing of materials in advance of the Hearing were issued to the parties on 20 October 2022 (Directions). The Directions required Mr Gibson to file his submissions and evidence in relation to the Jurisdictional Objection by 28 October 2022.
On 1 November 2022 Chambers sent an email to Mr Gibson informing him that his materials were overdue.
On 15 November 2022 HVA filed its submissions and evidence in relation to the Jurisdictional Objection.
On 16 November 2022 the parties were informed that in the absence of Mr Gibson filing any materials I proposed to determine the Jurisdictional Objection ‘on the papers’. The parties were instructed to advise Chambers by 4pm (AWST) Thursday 17 November 2022 if they wished to be heard in relation to the Jurisdictional Objection.
In the absence of any such request from either party I have determined the Jurisdictional Objection solely on the materials filed by the parties without a hearing.
Background
HVA is a labour hire business which places its employees on assignments with its customers which include Citic Pacific Mining (CPM). HVA is a wholly owned subsidiary of Programmed Skilled Workforce.
HVA labour supplied to CPM is rostered in accordance with CPM’s operational requirements.
Mr Gibson commenced employment with Programmed Skilled Workforce Ltd on 11 August 2020 on a casual basis pursuant to a written contract of employment (Contract).
The Contract relevantly provides the following:
“1. Casual Employment
You will be recorded as being available to accept offers of casual employment from any entity within the Programmed Group of companies. Being recorded as an available casual employee does not guarantee work, and you acknowledge that:
(a) Any work offered will be in accordance with Programmed’s needs. Programmed may change the quantity and arrangement of any work offered to you as necessary;
(b) There is no obligation on Programmed to offer or on you to accept, any assignment. Each offer and acceptance will constitute a distinct contract of employment, on the terms set out in this agreement, which is separate from any subsequent or prior contract of employment; and
(c) You do not have any entitlement to ongoing employment given the casual nature of your engagement.
…3. Assignments
…
(d) You acknowledge that an assignment is subject to, and the days of work, hours and length of the assignment are determined by, Programmed’s client requirements from time to time. Therefore, although you may accept an assignment from, and be informed of the expected days of work, hours and length of the assignment by Programmed, these are not guaranteed.
…”
On 25 August 2020, Mr Gibson commenced a work assignment at CPM as a Storeperson.
On 9 February 2022, Mr Gibson reported that he was experiencing numbness in his elbow whilst operating the forklift. Subsequently, Mr Gibson was referred to HVA’s Injury Management Team for further assessment of his injury and to commence the Workers Compensation claim process.
On 27 May 2022, Mr Gibson attended an appointment via Telehealth and received his final certificate of clearance.
On 30 May 2022, Mr Gibson contacted HVA to discuss his return to work.
On 31 May 2022, HVA received an email from CPM advising that Mr Gibson’s services were no longer required because sufficient CPM employees were available for CPMs labour needs. On the same day, HVA advised Mr Gibson that his assignment at CPM had concluded however he remained an employee of HVA.
During the same conversation, Mr Gibson advised HVA that he had just completed a double diploma in Logistics and Warehouse Management. HVA requested that Mr Gibson forward a copy of his new qualification so that a role could be sourced for him appropriate for his experience and skillsets. Mr Gibson confirmed that he was interested in further work assignments with HVA.
Between 1 June 2022 and 2 June 2022, two company representatives of the HVA unsuccessfully attempted to contact Mr Gibson via phone and SMS numerous times to discuss further work opportunities.
On 2 June 2022, a representative of HVA spoke to Mr Gibson about two work assignments that would be suitable for his skillsets. In the same conversation, Mr Gibson advised that he had seen the calls from HVA however he was ‘not in a position to discuss other roles at the moment’.
On 7 June 2022, HVA attempted to contact Mr Gibson via phone and left a message for him to call back regarding available job opportunities.
On 8 June 2022, Mr Gibson responded via SMS advising that he would like to ‘start a new role, anywhere possible’ and that he looked forward to speaking with HVA’s representative the following day.
On 9 June 2022, a HVA representative unsuccessfully attempted to contact Mr Gibson to discuss further work opportunities.
On 10 June 2022, HVA received a message from Mr Gibson advising that he would like to postpone any new job opportunities until 21 June 2022.
On 13 June 2022, HVA representatives attempted to contact Mr Gibson to discuss a warehouse opportunity at one of its client sites.
On 21 June 2022, the Respondent submitted Mr Gibson’s resume to two other client sites.
On 15 July 2022, a representative of HVA left Mr Gibson a message to call back regarding another role at a different client site and submitted his resume for the client’s consideration.
Since 10 June 2022, Mr Gibson has not responded to any of HVA’s approaches regarding further work assignments.
According to HVA Mr Gibson remains recorded as ‘available’ on its database should he be interested in other casual assignments with HVA.
Consideration
The Application was made pursuant to section 365 of the FW Act. Section 365 of the FW Act provides that:
“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 section 12 of the FW Act by reference to section 386. The term ‘dismissed’ is defined at section 386 of the FW Act as follows:
“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) 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.”
While section 386 is found in Part 3-2 - Unfair Dismissal of the FW Act the definition of ‘dismissed’ contained in section 386 of the FW Act has been applied by the Courts to section 365 general protections matters and I have adopted that approach in this Application.
In the Application Mr Gibson asserts that he was not informed of his dismissal by his employer and no reason was given for his demobilisation. However, he also states elsewhere in his Application that the reason for his dismissal was because his position had been filled internally.
The Contract clearly states that Mr Gibson would be employed on a casual basis to perform work assignments with Programmed Group companies.[2]
The Contract makes explicitly clear that he was not guaranteed ongoing work and a client could terminate an assignment at its sole discretion at any time.
The evidence reveals that HVA on multiple occasions using a variety of forms of communication have endeavoured to offer Mr Gibson further assignments. Mr Gibson has not elected to pursue any of these opportunities. The evidence suggests that he remains on HVA’s database should he elect to accepted further assignments.
I am not satisfied that Mr Gibson was dismissed for the purposes of section 365 of the FW Act.
I therefore uphold the Jurisdictional Objection and dismiss the Application.
An Order[3] to this effect will issue with this decision.
DEPUTY PRESIDENT
[1] [2020] FCAFC 152.
[2] Ibid.
[3] PR748193.
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