Mr Samuel Beach v ATC Worksmart

[2015] FWC 6159

[2015] FWC 6159

FAIR WORK COMMISSION

DECISION

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

Mr Samuel Beach
v
ATC Worksmart
(U2015/2148)

COMMISSIONER CLOGHAN PERTH, 9 SEPTEMBER 2015

Application for relief from unfair dismissal - jurisdiction - not dismissed.

[1] This is an application by Mr Samuel Beach (Mr Beach or Applicant) seeking a remedy for alleged unfair dismissal from his former employer, Great Southern Group Training Inc T/A ATC Work Smart (ATC or Employer).

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

[3] In response to the application, the Employer asserts that Mr Beach was not dismissed but rather his placement with a “host” employer had ended.

[4] The Employer’s response to Mr Beach’s application is essentially that the Commission has no power to deal with the matter because it can only deal with such an application if Mr Beach was dismissed pursuant to s.386(1)(a) of the FW Act.

[5] I advised the parties that I would deal with the Employer’s jurisdictional objection by way of written submissions. Subsequent to receiving the written submissions, I conducted a conference of the parties in compliance with s.397 of the FW Act.

[6] This is my decision and reasons for decision regarding ATC’s jurisdictional objection that Mr Beach has not been dismissed, and consequently, the Commission has no power to deal with the application.

RELEVANT LEGISLATIVE FRAMEWORK

[7] An unfair dismissal is set out relevantly in s.385 of the FW Act 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) …
(c) …
(d) …”

[8] The word “dismissed” is defined in s.386 of the FW Act:

“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.”

[9] According to the Explanatory Memorandum to the Fair Work Bill 2008:

“Clause 386 - Meaning of dismissed

1528. This clause sets out the circumstances in which a person is taken to be dismissed. A person is dismissed if the person's employment with his or her employer was terminated on the employer's initiative. This is intended to capture case law relating to the meaning of ‘termination at the initiative of the employer’ (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200).

RELEVANT BACKGROUND

[10] Both parties agree that ATC is a recruitment and labour hire company.

[11] Both parties agree Mr Beach’s employment was casual in nature and each engagement with a “host” employer, is considered a separate contract of employment.

[12] Both parties agree that ATC was not obligated to provide Mr Beach with employment on a continuous basis.

[13] Both parties agree that Mr Beach was engaged on an hourly basis and paid for all hours worked. Mr Beach was not paid for hours not worked.

[14] Both parties agree that ATC has a significant number of casual employees “on its books” (between 400 and 1,000) at any one time. Not all employees are able to be given placements with a “host” employer. The employees are offered placements according to their skillsets and, as and when, the person is available for work.

[15] Mr Beach completed a registration form with ATC, for casual employment placement in 2009.

[16] Between 2009 and 19 December 2014, Mr Beach was given various casual placements by ATC. It appears that some of these placements were for extended periods with particular “host” employers.

[17] On or about 13 November 2013, Mr Beach commenced employment with a “host” employer called R&L Bitumen Repair Services (R&L Bitumen).

[18] Mr Beach continued employment, it appears, on an uninterrupted basis with R&L Bitumen between 13 November 2013 and 19 December 2014.

[19] On 19 December 2014, ATC were advised by Mr R Robinson of R&L Bitumen that it did not want Mr Beach’s services in the future. Mr Robinson expressed the reason for the “host” employer’s decision was due to its financial loss, resulting from Mr Beach causing damage to equipment and other property.

[20] Mr Beach disputes the nature, extent and circumstances surrounding the damage to equipment and property.

[21] The Applicant made application to the Commission seeking a remedy for unfair dismissal on 8 January 2015.

[22] Mr Adams, the General Manager of ATC was not present when Mr Beach’s placement with R&L Bitumen ceased and did not become aware of the “host” employer’s termination of contract, until shortly before 14 January 2015.

[23] On 14 January 2015, Mr Beach agrees that he met with Mr Adams who advised him that his employment with ATC had not been terminated. Further, that ATC would still offer him casual work when it was available consistent with his skillset.

[24] Mr Adams emailed the Applicant on 19 January 2015 enquiring as to whether he was available for casual labour hire work placements should a placement become available. Mr Adams requested a response by 4:00 pm on 20 January 2015.

[25] On 20 January 2015, Mr Adams received a response from Mr Beach which essentially enquired as to what “job opportunities” are available to him. The Employer responded again seeking confirmation that he wanted to avail himself of casual hire placements.

[26] On 28 January 2015, the Employer emailed Mr Beach informing him that it has an opportunity for casual labour hire for the following week. The opportunity was short term (3 days) and the Applicant was given details of the job opportunity. The Applicant was requested to advise the Employer of his availability by 1:00 pm on 29 January 2015.

[27] At 11:55 am on 29 January 2015, Mr O’Dea, the Employer’s Recruitment Consultant telephoned Mr Beach and discussed with him the prospective position for the following week. Mr Beach declined the position as he had already obtained casual employment elsewhere.

[28] The Applicant has not sought further placements with the Employer since 29 January 2015, as he has found alternative casual employment.

[29] The Employer asserts that Mr Beach remains on its books as a casual employee and continues to be able to make available to Mr Beach placements consistent with his skillset and availability.

CONSIDERATION

[30] I am satisfied, on the material provided, that Mr Beach’s employer was ATC.

[31] Mr Beach was placed by ATC with R&L Bitumen from on or about 13 November 2013.

[32] It is not necessary to set out the reasons in detail why Mr Beach’s placement with R&L Bitumen ceased on 19 December 2014.

[33] I find that Mr Beach was not dismissed at the initiative of ATC either on 19 December 2014 or at any time up to and including 8 January 2015, when he made this application to the Commission.

[34] It would appear that Mr Beach, at times, had a difficult relationship with R&L Bitumen during his placement. However, Mr Beach’s allegations of bullying and monetary expectations are not matters that can be dealt with pursuant to this application.

[35] The critical jurisdictional issue in this application is whether there has been a termination of employment of Mr Beach at the initiative of ATC.

[36] Mr Beach has not provided any documentation which sets out that ATC dismissed him from his employment. On the contrary, Mr Beach specifically agreed that he was advised that he remained on ATC’s “books” and it endeavoured to find him a placement with another “host” employer.

[37] I cannot source any material or actions of ATC which demonstrates an end to the employment relationship at its initiative. Ultimately, what appears to have happened is that Mr Beach has found alternative employment and left the employment relationship.

[38] For the above reasons, I find that ATC did not terminate Mr Beach’s employment at its initiative. In such circumstances, the prerequisite of Mr Beach being dismissed at the initiative of the Employer, in order to make an application alleging unfair dismissal, has not been met.

[39] Having considered the requirements in s.396(b) of the FW Act, I am satisfied that Mr Beach was not dismissed in accordance with paragraph 386(1)(a) of the FW Act. As a consequence, I am satisfied that the Commission has no jurisdiction to deal with Mr Beach’s alleged unfair dismissal application as it does not meet the requirements of s.385(a) of the FW Act. Accordingly, the application is dismissed. An Order to this effect is attached to this Decision.

COMMISSIONER

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