Ms Aimie Sadler v Mobilise Pty Ltd and Mr Andrew Bunker

[2024] FWC 702

[2024] FWC 702

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Ms Aimie Sadler
v

Mobilise Pty Ltd and Mr Andrew Bunker

(C2023/5335)

COMMISSIONER THORNTON ADELAIDE, 18 MARCH 2024

Application to deal with contraventions involving dismissal –jurisdictional objection - Applicant never dismissed – casual employee – no dismissal – application dismissed.

1. On 31 August 2023, Ms Aimie Sadler (Ms Sadler or the Applicant) made a general protections application to the Fair Work Commission (the Commission) under section 365 of the Fair Work Act 2009 (Act) alleging contraventions of the Act associated with her alleged dismissal, including breaches of sections 340, 346, 351 and 358 of the Act.

1. Ms Sadler initially named ‘Black Coal Curragh Mines (Andrew Bunker)’ as her employer in her Form F8 application. After receiving correspondence from Mobilise Pty Ltd (Mobilise) which confirmed they were Ms Sadler’s employer, I exercised discretion under s.586 to amend the application to correct the name of the First Respondent to Mobilise Pty Ltd, with Mr Andrew Bunker as the Second Respondent.

1. Ms Sadler was employed under a labour hire arrangement and placed at the Curragh Mine site. She was initially placed with Golding Contractors Pty Ltd (Golding) who were undertaking work at the mine. Mr Bunker is an employee of Golding. He appears to have supervised Ms Sadler’s work while on placement with Golding. The Applicant’s placement at the mine came to an end on 20 August 2023 when Golding advised Mobilise that Ms Sadler was no longer required by that client. 

1. There is some confusion as to whether the Applicant was engaged by AWX Pty Ltd (AWX) or Mobilise as she received correspondence from both entities during her employment. The Commission was provided with employment engagement documents referring to AWX and Mobilise and a letter from AWX that notifies the Applicant of the end of her assignment with Golding. However, People In, an organisation that appears to provide external Human Resources Management for the First Respondent, corresponded with the Commission asserting that Mobilise was the correct employer and provided a copy of the Applicant’s employment contract and Schedule of Assignment with Mobilise. I accept that Mobilise is the correct employer and First Respondent to this application.

1. The First and Second Respondents both oppose the application.

1. The First Respondent provided submissions raising a jurisdictional objection that no adverse action was taken as the Applicant was never dismissed. The First Respondent submits that the Applicant was employed as a casual employee, and remains employed as a casual employee, whom they would consider for future work under a labour hire arrangement, should suitable work become available.

1. The Second Respondent raised an objection to the application on the basis that the Applicant had never been employed by Golding Contractors. I take this submission to be that as the Applicant was not an employee of his company, the Second Respondent could not have been involved in a decision, if any, to dismiss her from employment.

1. The decision of the Full Court of the Federal Court of Australia in Coles Supply Chain Pty Ltd v Milford[1] requires the Commission to determine an objection to jurisdiction under section 365 of the Act before the Commission can exercise powers conferred by section 368.[2] It is therefore necessary to determine the jurisdictional issue for the Applicant’s application to proceed further.

1. I issued directions on 31 October 2023.

1. On 17 November 2023, the Applicant failed to file any submissions in response to the First Respondent’s submissions regarding the jurisdictional objection. On 24 November 2023, I amended the directions to allow the Applicant a further opportunity to file submissions. The Applicant again did not file any material in reply.

1. The Applicant was provided with a final opportunity to provide submissions in response to the First Respondent’s jurisdictional objection by 8 January 2024 and was informed that should she not file any material I would likely make a determination on the material before me.

1. The Applicant did not file any materials by the deadline on 8 January 2024 and has since not provided any submissions. I subsequently notified parties that the matter was to be determined on the papers and that I had reserved my decision. Neither party objected to the matter being dealt with in this manner.

1. For the reasons set out below, I find that the Applicant was not dismissed. The Applicant was a casual employee to whom, upon the conclusion of her placement at Curragh Mine, the First Respondent confirmed in writing that she remained employed and may be contacted for future assignments. On that basis there was no termination by the employer and the application is dismissed because it is not within jurisdiction.

Background Facts

1. The First Respondent operates a labour hire business.

1. The Applicant was sent a letter of offer on 2 June 2023 by the First Respondent, which offered her casual employment as a Haul Truck Operator hosted with Golding at Curragh Mine. This letter was signed by the Applicant, in a signing clause that asked the Applicant to acknowledge and accept the terms offered.

1. Ms Sadler also signed an ‘Offer of employment’ on 3 June 2023 that included the following:

   “2.4  MOBILISE is under no obligation to:

   (a)   Offer future or on-going assignments to you.”

2. The Applicant commenced placement with the First Respondent on 21 July 2023.

1. The First Respondent has submitted a document titled “Mobilise Group Pty Ltd Schedule of Assignment Conditions”. It appears that this document was given to the Applicant as it is addressed to her, and it includes the term: “As casual (sic) you have the right to accept or refuse any casual assignment.”

1. The First Respondent submitted that Golding Contractors’ work requirements had changed and as a result, the Applicant’s assignment with Golding Contractors came to an end. The Applicant was notified of this change in circumstances and the conclusion of her assignment verbally and then in writing on 23 August 2023.

1. On 23 August 2023, the Applicant was given a letter that included: “We have been notified by our client that it no longer requires you to perform your current position at its site. … You will remain a casual employee …  . In the event we find another position with a different client then we will contact you to make the appropriate arrangements.”

Submissions

1. The First Respondent provided submissions in support of its jurisdictional objection that the Applicant was not dismissed on 10 November 2023.

1. A witness statement was provided by Tijana Lalovic, the Divisional Head of People for People In.

1. Ms Lalovic’s witness statement notes that the Applicant remains an employee of the First Respondent and that the Applicant was not suitable for vacancies at the time with the First Respondent’s clients as she does not possess the relevant licences required for available positions.

1. Ms Lalovic further states that the First Respondent will continue to offer the Applicant suitable assignments as they become available and the conclusion of an assignment does not constitute the termination of the Applicant’s employment.

1. The Second Respondent’s objection was filed in a Form F4 – Objection to Unfair Dismissal, and whilst it was noted on an incorrect form, stated the objection as: “Ms Sadler (Applicant) has never been employed by Golding.” No further submission or detail was provided.

1. As referred to above, the Applicant did not file any material in reply to the jurisdictional objection.

Consideration

1. Section 365 of the Act provides:

“365  Application for the FWC to deal with a dismissal dispute

If:

(a) a person has been dismissed; …

the person … may apply to the FWC for the FWC to deal with the dispute.”

1. Section 365 requires a dismissal to have occurred as a jurisdictional fact. A mere allegation that a person has been dismissed will not establish this as fact.[3] ‘Dismissal’ for these purposes (and other purposes of the Act) is defined in section 386(1),[4] which provides:

“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.”

1. Having raised the jurisdictional objection, the First Respondent bears the onus of establishing that the Applicant was not dismissed.

1. Section 386(1)(a) states that a person has been dismissed, for the purposes of the unfair dismissal provisions in Part 3-2 of the Act if the person’s employment has been terminated ‘on the employer’s initiative.’ It is necessary for me to decide whether the Applicant was dismissed by the Respondent within the meaning of section 386(1)(a) of the Act.

1. In her application, the Applicant contends that she was dismissed on 20 August 2023. The Applicant says that she was advised on her way back to camp that there were no available positions in a training program after she had started training and that she had been incorrectly accused of “knocking on someones (sic) door.” The Applicant asserts in her application that she “wants to know why they dismissed me from work” and does not assert a reason she believes she was dismissed.

1. The First Respondent made it clear to Ms Sadler in correspondence regarding the end of her assignment with Golding Contractors that she remained an employee and would be considered for future assignments. This position was communicated to the Applicant in writing and reiterated in the First Respondent’s submissions. This position is consistent with the Applicant’s employment as a casual employee, engaged in a labour hire arrangement.

1. I accept the First Respondent’s assertion that that at the time they filed their submissions Ms Sadler had not been offered a further assignment because she did not hold the relevant qualifications for the available work with the Respondent’s clients. There is no evidence before me to suggest that the Applicant was not being offered work for some other reason, including any unlawful reason, such that I should find that there was no intention on the part of the Respondent to offer future suitable work to the Applicant and she had in fact had her employment terminated.

1. There is no basis on the material before me to find that Ms Sadler was terminated at the initiative of her employer. I find the Applicant was not dismissed by the First Respondent.

1. With respect to the Second Respondent, the Applicant named Mr Bunker as her employer and as the contact person on her Form F8 application form. Ms Sadler has not set out her claim against Mr Bunker. Other than naming him as her employer, Ms Sadler does not offer any allegations as to how she says Mr Bunker was involved in any contraventions of the Act.

1. As I have found that Mobilise is the Applicant’s employer, and not Golding, Mr Bunker, as an employee of Golding, could not have terminated the Applicant’s employment. In any event, I have found that there was no termination at the initiative of the employer. The application against the Second Respondent is also outside of jurisdiction and cannot otherwise be sustained.

Conclusion

1. As the Applicant is not a person who has been dismissed, she is not entitled to apply under section 365 for the Commission to deal with a dismissal dispute. The application is therefore not made in accordance with this Act.

1. The jurisdictional objection is upheld and the application is dismissed.

COMMISSIONER

[1] [2020] FCAFC 152.

[2] See Yi Zhang v Medlab Clinical Ltd[2021] FWCFB 2453.

[3] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 at [54].

[4] See Varichak v COG Regional Team Pty Ltd[2022] FWCFB 37 at [30].

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