Mr John Dolinski v Rio Tinto T/A Rio Tinto Alcan Residual Red Dam, Yarwun

[2014] FWC 1250

[2014] FWC 1250

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr John Dolinski
v
Rio Tinto T/A Rio Tinto Alcan Residual Red Dam, Yarwun
(U2013/15708)

COMMISSIONER SPENCER BRISBANE, 20 FEBRUARY 2014

Application for relief from unfair dismissal - jurisdictional objection - not the employer.

Introduction

[1] This decision relates to an application made by Mr John Dolinski (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy on the grounds that the termination of his employment from Rio Tinto Alcan Yarwun Pty ltd (the Respondent/the Employer) was harsh, unjust and or unreasonable.

[2] The Respondent in this matter has raised a jurisdictional objection (the jurisdictional objection) to the application alleging that the Applicant was not an employee of the Respondent. This decision relates to the jurisdictional objection only.

[3] Directions were set for the filing of submissions and evidence in relation to the jurisdictional objection. Material was filed by both parties.

[4] While not all of the evidence and submissions in this matter are referred too, all of such have been considered.

Background

[5] The Form F2 Application for Unfair Dismissal Remedy, filed on 11 November 2013, stated that the Applicant commenced employment in November 2012. The application stated that the date the Applicant was notified of the dismissal and the date on which the dismissal took effect was 24 October 2013.

[6] On 26 November 2013 the Respondent filed a Form F4 Objection to Application for Unfair Dismissal Remedy. By way of the objection, the Respondent stated that it was not the employer or joint employer of the Applicant. The Respondent identified a further entity as the true employer of the Applicant.

[7] Following a directions conference before the Commission, consent Directions were issued for the filing of material in relation to the jurisdictional objection.

Relevant Provisions of the Legislation

[8] The substantive application has been made pursuant to s.394 of the Act. Section 394 provides as follows:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

...

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

...”

[9] Further, the Act defines the meaning of dismissed, as follows:

“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

...” (emphasis added)

Summary of the Respondent’s Submissions and Evidence

[10] The Respondent submitted that the true employer of the Applicant undertook the supply of labour hire services to various industry clients, including the Respondent. This decision refers to the alleged true employer as the identified employer. The identified employer was stated to be responsible for the Applicant’s superannuation, payroll tax, public liability insurance and workers’ compensation insurance. The identified employer also provided the Applicant with health, safety and environment tools and training.

[11] The identified employer invoiced the Respondent for the weekly services provided.

[12] Following a number of safety breaches the Respondent submitted that it notified the identified employer that the Applicant was no longer able to performance work at the Respondent’s site.

[13] In support of the Respondent’s submissions the Respondent filed a number of payslips identified as the Applicant’s payslips. Each payslip identified that it had been issued by the identified employer, not the Respondent. The Respondent also submitted a PAYG payment summary, issued to the Applicant by the identified employer.

Summary of the Applicant’s Submissions and Evidence

[14] The Applicant filed material in response to the jurisdictional objection.

[15] The Applicant stated:

“I agree that I was employed by [the identified employer] and hired to work at the Rio Tinto Alcam (sic) Red Dam, Yarwin”

[16] The Applicant submitted however that he was terminated by a Supervisor, employed by Rio Tinto. The Applicant submitted that in this meeting he was provided a letter of dismissal by the Rio Tinto employee.

[17] A week after this event, the Applicant stated that he was contacted by the identified employer who queried why he had not submitted a timesheet for the prior work period. The Applicant stated that the identified employer was “shocked” after the Applicant advised he had been dismissed.

[18] Importantly, the Applicant submitted that, prior to the safety matters which ultimately led to his dismissal, he was held in high regard and “repeatedly offered a permanent job with [the Respondent]”.

[19] Attached to the Applicant’s material was a letter, dated 21 October 2013, that the Applicant stated he was required to sign by the Respondent. This occurred after a safety incident involving the Applicant. Relevantly, the letter stated:

“...the following points must be followed in order for your contract services at [the Respondent’s site] to continue”

Conclusion

[20] The Applicant has conceded that he was not employed by the Respondent. This concession alone substantiates the Respondent’s jurisdictional objection.

[21] However, even in the absence of this concession, the evidence before the Commission satisfies the Commission that the Applicant was not an employee of the Respondent.

[22] The payslips filed by the Respondent indicate that they have been issued to the Applicant by the identified employer. The Applicant does not challenge that all employment matters were the responsibility of the identified employer (ie superannuation, payment of wages etc). The PAYG summary was also issued by the identified employer.

[23] Further to those matters, the letter of 21 October 2013, which the Applicant stated was written by the Respondent, is written on the basis that the Applicant’s services are provided on a contract basis to the Respondent; that is not as an employee.

[24] Arrangements, such as presented in this matter, are common in various industries; particularly in relation to building and construction and mining. The contractual arrangements between a principal contractor and subcontractor often provide for the principal contractor to have a total right to manage safety on site and require subcontracted employees to comply with site safety requirements. This is regularly the case because the principal contractor is the one in control of the site and holds the primary obligation or duty to manage safety on site.

[25] The Respondent’s jurisdictional objection is substantiated. The Applicant was not an employee of the Respondent. The Applicant was therefore not “dismissed” from employment with the Respondent because he was not employed by the Respondent.

[26] The application filed pursuant to s.394 of the Act must be dismissed.

[27] I Order accordingly.

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