Ms Georgina McBride v Flexy Services Pty Ltd - [2024] FWC 1839

[2024] FWC 1839

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Ms Georgina McBride
v

Flexy Services Pty Ltd

(C2024/2298)

DEPUTY PRESIDENT O'KEEFFE

PERTH, 16 JULY 2024

Application under s365 – jurisdictional objection (not dismissed)

Georgina McBride (the Applicant) was first employed by Flexy Services Pty Ltd (the Respondent) as a casual employee in May 2022. The Respondent is engaged in the business of providing labour to various other organisations. From 27 June 2022, Ms McBride was placed in a position where she undertook work for Rio Tinto, who are a client of the Respondent. In the first instance, this placement or “assignment” with Rio Tinto was scheduled to end on 25 June 2023. However, on 26 June 2023 the assignment was extended to 25 June 2024 and at that time Ms McBride received a pay increase.

In December 2023 the Respondent conducted a review of Ms McBride’s casual employment to assess the possibility of conversion to permanent employment. However, as the assignment extension was scheduled to end on 25 June 2024, the Respondent advised Ms McBride by email that it could not offer her a permanent role. It appears Ms McBride was unsure of the purpose of that email and questioned Ms Cathy William – the Respondent’s Onboarding and Mobilisation Manager – about its effect. Ms McBride was assured that she would remain at Rio Tinto and that the assessment was part of the Respondent’s duties to its casual employees imposed by the Fair Work Act 2009 (the Act).

Thereafter Ms McBride continued to perform work for Rio Tinto until the middle of March 2024 when she was advised by officers of Rio Tinto that she would no longer be required to perform work for the company. On 27 March 2024, Ms McBride applied to the Fair Work Commission (the FWC) under s. 365 of the Act alleging she had been dismissed in contravention of the general protections provisions. This application was made against the Respondent in this matter. That application was subsequently withdrawn and on 9 April 2024 Ms McBride again applied to the FWC under s.365 with the application again made against the Respondent.

It is against that second application that the Respondent has lodged its jurisdictional objection and to which I turn my attention. It is clear that for the FWC to have jurisdiction to deal with a s.365 application the applicant must have been an employee of the Respondent who was dismissed at the initiative of the Respondent. Before considering the submissions and evidence of the parties on those issues, it is appropriate that I provide some background to the conduct of the case. Upon reading the submissions of both parties, I was concerned that Ms McBride had not properly explained how or when it was that her employment had been terminated by the Respondent. As a result, I had resolved to seek oral submissions from Ms McBride…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] FWC 1839
Decision Date: 16 JULY 2024

CaseChat Overview and Summary

Ms Georgina McBride lodged a second application with the Fair Work Commission (FWC) under section 365 of the Fair Work Act 2009 (the Act) alleging that she had been dismissed by Flexy Services Pty Ltd (the Respondent) in contravention of the general protections provisions. The Respondent lodged a jurisdictional objection, contending that the Commission lacked jurisdiction to hear Ms McBride's application as it did not appear that she had been dismissed by the Respondent. The Deputy President found that the application was not properly before the FWC because there was no evidence that Ms McBride had been dismissed by the Respondent. The Deputy President found that while Rio Tinto had terminated Ms McBride's assignment without notice to the Respondent, that did not constitute a dismissal by the Respondent. The Deputy President found that Ms McBride had not been dismissed by the Respondent and that there was no evidence of forced resignation or constructive dismissal. The Deputy President concluded that the FWC did not have jurisdiction to hear the matter and dismissed Ms McBride's application.

Orders