Mr Dragan Jasevski v Australia Post

[2010] FWA 9472

[2010] FWA 9472

FAIR WORK AUSTRALIA

INTERIM DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Mr Dragan Jasevski
v
Australia Post
(C2010/5726)

COMMISSIONER ROE MELBOURNE, 8 DECEMBER 2010

Interim Decision - general protections dispute.

[1] On 1 December 2010 Dragan Jasevski made an application pursuant to Section 365 of the Fair Work Act 2009 alleging contravention of Part 3-1 of the Act involving dismissal.

[2] I conducted a conciliation conference on 7 December 2010 which was attended by the Applicant Mr Jasevski and also by Australia Post representatives including Mr Alistair Talbot.

[3] There was a thorough consideration of all of the issues surrounding the alleged harm to the Applicant.

[4] I am required to issue a certificate under Section 369 if I am satisfied that all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful. I am satisfied that all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful. However, I have not yet issued a certificate for the reasons set out in this interim decision.

[5] I advised the parties that I was satisfied that some of the matters raised by the Applicant if proved could constitute a contravention of Part 3-1 of the Act. In particular:

• The Applicant alleged that he had been dismissed due to his seeking to exercise workplace rights and in particular his right to a rest break during a 5 hour shift consistent with the provisions of the relevant industrial instrument and his right to pursue a grievance concerning this consistent with the disputes settlement clauses of the relevant industrial instrument.



• The Applicant alleged that he had been discriminated against because he was employed under an agency arrangement rather than as a direct full or part time employee, that is because he was employed under a particular kind of workplace instrument within a type of workplace instrument.

[6] I advised the parties that I was satisfied that the other grounds raised by the Applicant were unlikely to constitute contraventions of Part 3-1 of the Act even if they could be proved.

[7] The fact that the Applicant was engaged by Ready Workforce and allocated to work at Australia Post does not of itself prevent an action against Australia Post being taken under Section 365 of the Fair Work Act 2009. Similarly if it could be demonstrated that the actions of Australia Post had caused the Applicant to be dismissed from employment then in some circumstances this could constitute adverse action by Australia Post pursuant to Part 3-1 of the Act.

[8] Australia Post advised that they had not dismissed the Applicant or caused the labour hire firm Ready Workforce to dismiss the Applicant. Australia Post advised that they accepted that Mr Jasevski was entitled to a break during a 5 hour shift and that he had been advised of this in response to his complaint. Australia Post advised that they had not and would not take any adverse action against the Applicant because of the complaint he had raised. Australia Post advised that there was no bar on the Applicant being considered for future placement at Australia Post in the event of vacancies however the Applicant’s suitability would be determined using the same practices and criteria used for all other casual workers utilised by Australia Post from Ready Workforce. Australia Post did provide some details of performance or conduct issues raised in regular assessments of the Applicant’s performance utilising a system which applies to all workers utilised from Ready Workforce by Australia Post. Australia Post advised that the particular engagement by the Applicant at Australia Post had come to an end due to the return to work of an injured Australia Post employee whose work the Applicant had been doing during the absence.

[9] In the absence of any evidence to contradict these matters, apart from the evidence of the Applicant in strenuously contesting some of the adverse performance or conduct assessment matters, it is not possible to be satisfied that the preconditions for an Application under Section 365 have been met. Section 365 requires that a person has been dismissed and that the person alleges that the person was dismissed in contravention of Part3-1. The second of these preconditions is met in that the Applicant alleges that there has been dismissal in contravention of Part 3-1. However, there is some doubt that the first of these preconditions has been met in that it is unclear that there has been a dismissal. Although there is no requirement for a dismissal at the initiative of the employer, there is a requirement for a dismissal. Where an employee is engaged for a particular time or task – namely the relief of an injured Australia Post worker for the duration of that absence- it is certainly arguable that in some circumstances it is not a dismissal when the engagement does not continue beyond that period. The circumstances of this case have some similarities with the decision of Commissioner Cloghan in Mr David Tee v Ready Workforce (A division of Chandler Macleod) Pty Limited ((2010) FWA 871)). The contention of Australia Post is that the Applicant remains on the books of Ready Workforce and could be assigned further work at Australia Post or elsewhere.

[10] At the conclusion of the proceedings I advised the parties that I had formed the view that conciliation was exhausted. I also advised the parties that I would issue this interim decision concerning the potential obstacles to the matter proceeding further. I also advised the parties that I would issue a certificate under Section 369. Upon reflection I do not believe that I can issue a certificate under Section 369 at this stage because I am not able to yet determine whether or not there is jurisdiction for the Application. If the Application cannot be properly made under Section 365 then I cannot issue a certificate under Section 369.

[11] I did not conduct a hearing and require Australia Post and the Applicant to produce evidence to prove the matters they contended. I therefore am not in a position to draw a definitive conclusion as to whether or not there is jurisdiction for this Application.

[12] If the Applicant wishes me to issue a certificate so that he has the opportunity to take the matter further by making a general protections court application then it will be necessary for me to hold a hearing to determine whether or not the Applicant has been dismissed.

[13] The Applicant is required to advise Fair Work Australia by 21 December 2010 if he wishes to proceed with this course of action. In that event directions will be issued and the Applicant will then be required to provide any evidence upon which he may rely in support of the contention that he has been dismissed and that there is jurisdiction for an action against Australia Post in this matter.

[14] In the event that the Applicant does not advise that he wishes to proceed with this action by 21 December 2010 then no certificate will issued, the Application will be dismissed and the file will be closed.

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