Mr Riccardo Zornada v Compass Health Pty Ltd T/A Dynamiq

[2015] FWC 192

[2015] FWC 192

FAIR WORK COMMISSION

DECISION

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

Mr Riccardo Zornada
v
Compass Health Pty Ltd T/A Dynamiq
(U2014/9352)

COMMISSIONER CLOGHAN PERTH, 13 JANUARY 2015

Application for relief from unfair dismissal - jurisdictional objection - not dismissed - casual employee - minimum employment period.

[1] On 19 September 2014, Mr Riccardo Zornada (Mr Zornada or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his former employer, Compass Health Pty Ltd T/A Dynamiq (Employer).

[2] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[3] The application was referred to me for arbitration on 28 October 2014.

[4] In response to the application, the Employer asserts that the Applicant is not protected against unfair dismissal because:

• the Applicant was not dismissed; and



• the Applicant is a casual employee and remains a casual employee of the Employer; and



• in any event, the Applicant’s employment does not meet the minimum employment period.

[5] On 4 November 2014, I issued Directions to assist in resolution of the Employer’s jurisdictional objections. I advised the parties that, should either party wish to challenge the submissions or affidavits of the other party regarding matters in dispute, they could do so by way of a hearing.

[6] The Employer advised the Commission that it consented to the matter being determined on the written submissions, however, should the Applicant advise that he wished to attend at the hearing, the Employer would exercise its right to attend. The Applicant sought a hearing.

[7] At the hearing, the Applicant represented himself and gave evidence on his own behalf. Mr Anthony, Human Resource Advisor, represented the Employer and gave evidence on its behalf.

[8] This is my decision and reasons for decision.

RELEVANT LEGISLATIVE FRAMEWORK

[9] Section 385 of the FW Act sets out the meaning of unfair dismissal as follows:

“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) ...
(d) ...”

“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 or her employer.

...”

[10] The minimum period of employment is set out in s.383 of the FW Act as follows:

“383 Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer—one year ending at that time.”

RELEVANT BACKGROUND

[11] On 26 or 27 September 2012, the Applicant commenced employment with the Employer as an Emergency Relief paramedic. Mr Zornada’s contract of employment was for a fixed term of one (1) year as a full-time employee. Mr Zornada was located at the Western Turner Syncline worksite.

[12] On 27 September 2013, Mr Zornada entered into a further fixed term contract until 31 December 2013 as a full-time employee. The location of the workplace remained the same. The Applicant disputes that he “signed” this contract but does not dispute the elements of his contract of employment.

[13] On 6 March 2013, Mr Zornada entered into a further contract of employment as a casual paramedic with a commencement date of 19 December 2013. The hours of work were “as per Dynamiq requirement”. The location of work is states as, “as per Dynamiq requirement”.

[14] Although the commencement date set out in the above contract of employment is 19 December 2013, and signed on 6 March 2014, the Employer asserts that Mr Zornada was not employed between 31 December 2013 and 11 March 2014.

[15] While it is possible that the commencement date is an inadvertent mistake and should read 6 March 2014, it is not disputed that Mr Zornada did not carry out any casual work between, at least, 31 December 2013 and 11 March 2014.

[16] Mr Zornada worked for the Employer on the following dates as a casual paramedic:

• 12 March 2014 to 3 April 2014; and



• 10 April 2014 to 24 April 2014.

[17] In August 2014, Mr Zornada was offered further employment at the Rio Tinto Koodaideri Resources Development site (Client site).

[18] Mr Zornada worked at the Client site from:

• 6 August 2014 to 20 August 2014;



• 27 August 2014 to 3 September 2014; and



• 10 September 2014 to 17 September 2014.

[19] Mr Zornada states that, “on Friday 19th September 2014 I was informed by Kiel Anthony that I would not be returning to site. I requested a reason as to why, no reason was forthcoming other than ‘the Client’...stated that I was not to return to site” 1.

[20] On 19 September 2014, Mr Zornada made this application to the Commission seeking a remedy for alleged unfair dismissal.

[21] In his application, Mr Zornada states that he was dismissed on 19 September 2014 at 11:15 am.

CONSIDERATION

[22] To determine whether Mr Zornada is protected from the unfair dismissal provisions of Part 3-2 of the FW Act, it is necessary to determine whether he has been dismissed.

Was Mr Zornada dismissed in accordance with s.386 of the FW Act?

[23] The Applicant understood the Employer’s jurisdictional objection. The Applicant is not asserting that he was dismissed in accordance with s.386(1)(b) of the FW Act.

[24] The grounds for the Applicant considering that he was dismissed were set out in the following exchange:

“THE COMMISSIONER: What did they say to you that as a consequence of that you considered yourself to be dismissed?

MR ZORNADA: That I would not be returning; that I was removed – would not be returning to site.

THE COMMISSIONER: Right. Did they say that as a consequence of that you're no longer employed?

MR ZORNADA: Those exact words weren't uttered.” 2

“THE COMMISSIONER: Yes. What words do you say that were said that indicated to the commission that the employer sacked you, just words here? I'll get to the actions in a minute.

MR ZORNADA: That the client, to the best of my recollection, no longer required my services at the site. When I sought an explanation for that, there was no reason forthcoming, none whatsoever.

THE COMMISSIONER: Yes.” 3

“THE COMMISSIONER: I take it as a consequence of that, you're saying that the action that leads you to believe that you were dismissed was the removal from that work site.

MR ZORNADA: Absolutely.

THE COMMISSIONER: Right. Is there any other actions which the employer has taken which you consider indicates or demonstrates that you were dismissed?

MR ZORNADA: Yes. I'm not enjoying the weekly pay which I was getting.” 4

“MR ZORNADA: I'm no longer working in that capacity, even though the employer maintains I am on a casual basis, even though there have been other situations where the work was ongoing, albeit on other sites, so I take that to be – we can use whatever semantics we like, that’s still a form of removal, dismissal or non-continuous of position.” 5

[25] Mr Zornada’s evidence was as follows:

“...On Friday, 19 September 2014, I was summarily dismissed by a telephone call from the human resources adviser Keil Anthony from Compass Health, trading as Dynamiq, on their initiative. When asked for a reason and explanation as to the reason for this decision there was none forthcoming.” 6

[26] It is not uncommon for applicants to set out a position relating to the law which he or she believes, expects and considers to be the case. While Mr Zornada characterises the circumstance of the telephone call as summary dismissal in his evidence, I consider the content of the telephone call consistent with the exchange in paragraph [24] above that he would not be returning to the Client site at the request of the client.

[27] Mr Anthony’s written evidence is that the Employer, on 18 September 2014, received advice from its client that it no longer wanted Mr Zornada at the Client site. Further:

“Due to business reasons, no explanation was sought from the Client as it is their prerogative to make decisions regarding personnel on their site. From a business management perspective, it was important for me to comply with the client’s request.

On 19 September 2014, I spoke to Riccardo [Mr Zornada] regarding the client’s request that he not return to the site.

I said: “You will not be returning to the Koodaideri resource development project at the request of the Client. They had requested that you do not return to the site.”

Riccardo asked what reasons had been put forth by the Client.

I stated words to the effect of: “Dynamiq is not in a commercial position to seek further clarification and due to business reasons we will not be seeking any such explanation.”

At no point during that conversation did I tell Riccardo that his employment with Dynamiq was being terminated. I simply stated that we would not be sending him back to the Client site.

At no time subsequent to the conversation on 19 September 2014 did I indicate to Riccardo that his employment with Dynamiq was being terminated.

Since the client requested that Riccardo not return to the Client site, I have continued to consider Riccardo for jobs on other client sites.

Since the conciliation in this matter which was held on 16 October 2014, only one casual employee has been placed on any of our client sites. There have been no other opportunities for which Riccardo could have been offered work.

In examining Riccardo’s course of casual employment, a gap of several months between jobs is not unusual.

Riccardo remains a casual employee of Dynamiq. He was never an employee of the Client. Riccardo has not been dismissed from his position with Dynamiq and will continue to be considered for suitable work opportunities as they become available.” 7

[28] Mr Zornada did not cross examine Mr Anthony on this evidence Mr Anthony’s evidence is consistent with Mr Zornada’s submission and I find his evidence a true and accurate representation of what has occurred.

[29] Mr Zornada relies upon the explicit telephone conversation with Mr Anthony as constituting his dismissal. However, that conversation did not expressly terminate his employment. Mr Zornada concedes that Mr Anthony uttered no words to the effect that he was dismissed.

[30] The Employer’s client requested that the Employer not place Mr Zornada at its site in future. Having received that information on 18 September 2014, the Employer acted swiftly and properly to advise Mr Zornada of the situation on the following day. In advising Mr Zornada, the Employer was not bringing the employment contract or employment relationship to an end - it was bringing to an end the Employer’s placement of Mr Zornada at the Client’s site to an end.

[31] The bringing to an end of Mr Zornada’s placement at the Client site does not demonstrate that the Employer brought to an end the employment relationship. The uncontested evidence of Mr Anthony is that on 19 September 2014, Mr Zornada would be considered for ongoing casual employment at other client sites.

[32] I have considered whether the Employer’s decision to no longer place Mr Zornada at the Client site was such a radical change to his contract of employment, that he was entitled to treat his contract of employment at an end. However, Mr Zornada signed a contract of employment in which he agreed that his location of work was “as required” by the Employer. Further, Mr Zornada, during his contracts of employment, worked at various work sites.

[33] Mr Zornada contested Mr Anthony’s evidence that he remains a casual employee and will be considered for suitable work opportunities, as and when, they become available.

[34] Mr Zornada referred to two opportunities that he considered had become available but he had not been given an opportunity to carry out the work. Mr Anthony provided the business reasons why Mr Zornada was not considered for those work opportunities. I have no reason to disbelieve the explanation given by Mr Anthony as to why Mr Zornada was not considered for the work.

[35] It is not without some irony that Mr Zornada questioned the veracity of the Employer’s evidence that he was and is being considered for ongoing casual work opportunities. From 19 September 2014, Mr Zornada considered himself to have been dismissed. Consequently, from his perspective, there should not be any ongoing employment expectations as the employment relationship had ceased. It is difficult to understand how Mr Zornada considers the Employer had any ongoing obligation to provide him employment as he had been dismissed. Further, if he had been offered casual work and took up those opportunities, that action would have affirmed the Employer’s response to his application and undermined the grounds for his application. However, these are my observations and do not go directly to the Employer’s jurisdictional objections.

CONCLUSION

[36] Having considered the written submissions and attached documentation, oral evidence and the meaning of dismissed in s.386(1)(a) of the FW Act, I find that Mr Zornada was not dismissed by the Employer on 19 September 2014. Accordingly, Mr Zornada is unable to make application alleging that he was unfairly dismissed. Consequently, it is unnecessary for the Commission to consider the Employer’s secondary jurisdictional objection that the duration of the Applicant’s employment, does not meet the minimum period of employment to be protected from unfair dismissal.

[37] An order to effect this Decision is attached.

COMMISSIONER

Appearances:

R Zornada, the Applicant.

K Anthony on behalf of the Employer.

Hearing details:

2015:

Perth,

6 January.

 1   Applicant’s Statement of Facts.

 2   Transcript PN70 to PN73

 3   Transcript PN76 to PN78

 4   Transcript PN82 to PN85

 5   Transcript PN87

 6   Transcript PN257

 7   Exhibit R1

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