Mr Huan Gao v MCC Pty Limited
[2024] FWC 3345
•2 DECEMBER 2024
| [2024] FWC 3345 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Huan Gao
v
MCC Pty Limited
(U2024/11572)
| DEPUTY PRESIDENT BUTLER | BRISBANE, 2 DECEMBER 2024 |
Application for relief from unfair dismissal – jurisdictional objection – specified task – objection dismissed
Mr Huan Gao has applied for an unfair dismissal remedy, naming MCC Pty Limited (‘MCC’) as the Respondent, and Mr Chris Scroope as the contact person at MCC. Mr Scroope lodged a response to Mr Gao’s application, listing Construction Works Qld Pty Limited as the employer, and listing himself on behalf of MCC as the employer’s representative.
The response, as filed, appears to raise two jurisdictional objections. I decided to deal with the second objection discretely. For the reasons that follow, I do not accept it. This does not dispose of the Respondent’s other objection or the substantive application.
Background
Mr Gao commenced work on 9 January 2024. He ceased on 20 September 2024. The dates are not in contest.
Mr Gao worked on various projects.
Mr Gao had learned about the role via an advertisement on the recruitment website Seek. Neither party had a copy of the specific advertisement. Mr Scroope provided a copy of a Seek advertisement[1] that he thought would have been in the same terms. Mr Gao also provided a later advertisement in similar terms.[2]
The application and the apparent jurisdictional objections
Mr Gao lodged his application on 27 September 2024. Mr Scroope lodged the response on 14 October 2024.
In the response, under the jurisdictional objections heading, Mr Scroope marked “Yes” and, from the different jurisdictional objections options listed, “other.” The form then stated what appeared to be two objections. The first was that Mr Gao was employed by “Construction Works Qld,” as a casual. The second was that Mr Gao specifically worked on projects requiring a Plasterer, that the last project he had worked on had been the Mt Gravatt Recreation Centre project, and that he was:
… dismissed as the plastering for the project had been completed, and as CWQ had no other plastering work requirement on any other projects, it was not necessary to keep [Mr Gao] employed.
This was not very clear. Because this response appeared to have been prepared without assistance from a lawyer it was appropriate to try to discern from it the Respondent’s case. I was assisted in this by reading the response, as filed, as a whole. Under the section for reasons for dismissal, the response stated:
1. The project [Mr Gao] was working on had finalised for his particular trade (Plastering).
2. [Mr Gao] is a casual employee so a notice period is not required.
In answer to the question about how many employees the employer had, it stated:
7 other employees although all were labourers
Huan Gao was a Plasterer and had finished the requirements of this part of the project.
Having regard to the description of the objection, and the other parts of the form referred to above, I took the second objection as being an objection on the basis that Mr Gao had been engaged for a specified task.
The Fair Work Act 2009 (Cth) (‘the Fair Work Act’) relevantly provides that “… a person has not been dismissed if: … 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…”.[3]
I decided to determine this second jurisdictional objection discretely. I issued directions for that purpose on 8 November 2024. At the commencement of those directions, I provided the following background for the parties:
The Applicant has applied for an unfair dismissal remedy. The Respondent has objected to the application. One of the objections is that the Respondent says the Applicant was employed for a specific task. The Commission will deal with this objection before considering the other issues in the case.
I conducted a determinative conference on 25 November 2024. Mr Gao appeared for himself and was assisted by an interpreter provided by the Commission. Mr Scroope appeared for the Respondent.
At various points during the course of the conference Mr Scroope stated that he did not understand what we were doing here. He also indicated that the Respondent had lawyers and he wanted to speak with them. He also said he had received Mr Gao’s materials only on Friday 22 November 2024. I provided the parties with a half hour adjournment to allow Mr Scroope time to speak with his lawyers. Mr Scroope also made submissions pressing for an adjournment to a later date, which Mr Gao opposed.
I did not grant a longer adjournment. The Respondent had been on notice of the application since at least early October 2024, and the response was lodged on 14 October 2024. I issued directions on 8 November 2024. The directions explicitly invited submissions as to representation, if any party wished to seek permission to be represented. The reason each party had been given an extra day to file their materials in advance of the conference was because of a request from Mr Scroope for an extension. Time had been allocated for the conference and an interpreter arranged.
At the conference I explored with Mr Scroope whether the Respondent was objecting on the basis that Mr Gao had been employed for a specific task, what the task was, and whether he wished to press that objection. When we resumed after the adjournment I had allowed, to give him time to talk to his lawyers, I again asked if he wanted to press the objection in relation to whether Mr Gao had been employed for a specific task. He did.
Submissions and evidence
As stated, the matter was dealt with by determinative conference. I heard submissions from the parties in relation to the issue of this jurisdictional objection. I will deal with those submissions as necessary below.
Each of Mr Scroope and Mr Gao gave evidence. No other witnesses were called.
Consideration
Taking the job advertisement on its face, there is no mention of the employment being for a specified task, such as a specific project or group of projects.
Mr Gao’s initial conversations about the role were with his supervisor, Mr Brendan Jones. The Respondent did not call Mr Jones as a witness so the only direct evidence about those conversations was from Mr Gao. On Mr Gao’s evidence Mr Jones did not tell him he was being hired for a specified task.
There was no written offer of employment, or written contract of employment, for a specified task, or at all. The Respondent did not provide anything in writing showing that the employment or engagement was for a specified task.
The paperwork that Mr Gao filled out on 10 January 2024, headed “Construction Works Qld Pty Ltd Employee Details Form”[4] may be of relevance to the other jurisdictional objection but does not state anything about the employment being for a specified task.
Mr Scroope’s submissions were effectively that Mr Gao had successive engagements, each for a specified task, namely the specific project Mr Gao was to work on. He says that when Mr Gao started on the last of the projects on which he worked, he was told that his engagement was only for that project. He did not say who told Mr Gao this.
On the other hand, Mr Gao maintained that he was not employed for a specified task. He referred to a spreadsheet[5] that the Respondent had provided. That spreadsheet sets out dates from January 9 to September 20 inclusive, and records the projects on which Mr Gao worked each day. Mr Scroope made no spreadsheet. The spreadsheet shows that on some dates Mr Gao worked on more than one project, and shows some movement back and forth between projects. Mr Gao also provided screenshots[6] of text messages with “Brendan” showing he was told from day to day where he would be working. Mr Scroope did not take issue with these screenshots.
I find Mr Gao was not employed for a specified task for the purposes of s 386(2)(a) of the Fair Work Act. This jurisdictional objection is not accepted. The Respondent can still press its other jurisdictional objection and resist the substantive application.
Other matters
The parties also referred to other issues that seem to be in dispute between them such as whether Mr Gao was a carpenter, and in relation to an injury. It has not been necessary to deal with these issues in these reasons. If, and to the extent that, they are relevant to any other objection or the substantive application, they can be dealt with at the appropriate time.
Conclusion
The jurisdictional objection in relation to employment for a specified task is dismissed.
I will issue further directions to deal with any remaining jurisdictional objections and, if necessary, the substantive matter.
DEPUTY PRESIDENT
Appearances:
Mr H. Gao, for himself
Mr C. Scroope, for the Respondent
Determinative Conference details:
25 November 2024, Brisbane
[1] Exhibit R1.
[2] Exhibit A2.
[3] Fair Work Act 2009 (Cth) s 386(2)(a).
[4] Exhibit A5.
[5] Exhibit A1.
[6] Exhibit A4.
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