Paul Endres v Aspen Medical Pty Ltd T/A Aspen Medical

[2016] FWC 2395

[2016] FWC 2395

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Paul Endres
v
Aspen Medical Pty Ltd T/A Aspen Medical
(C2015/7305)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 14 APRIL 2016

Application to deal with contraventions involving dismissal – jurisdictional objection – not the employer - jurisdictional objection upheld - application dismissed.

[1] Mr Paul Endres (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 12 November 2015 under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by Aspen Medical Pty Ltd (Aspen – the Respondent) on 23 October 2015 in contravention of the general protections provisions in the Act.

[2] In its Form F8A – Response to general protections application, Aspen raised a jurisdictional objection, contending that Mr Endres was employed by Aspen Healthcare Solutions (AHS), a company which is incorporated and registered in the United Kingdom. AHS is a wholly owned subsidiary of Aspen.

[3] Following receipt of Aspen’s jurisdictional objection, the Commission issued Directions on 2 December 2015 requiring the parties to file an outline of submissions and any evidentiary material they intended to rely on regarding the jurisdictional objection.

[4] The jurisdictional objection was the subject of a telephone hearing on 12 February 2016. At the telephone hearing, Mr Endres appeared on his own behalf, while Ms Yolanda Kuruc appeared for Aspen.

[5] For the reasons set out below, I have concluded that Mr Endres was not employed by Aspen but by its United Kingdom subsidiary, AHS, and that AHS is not covered by Part 3-1 of the the Act as it is not a constitutionally-covered entity for the purposes of s.338(2) of the Act. As such, Mr Endres’ application is incompetent and will be dismissed.

Background

[6] Mr Endres accepted an offer of employment on 11 August 2015 to work as an Environmental Health Officer (EHO) in Sierra Leone in Ebola Treatment Centres. Mr Endres employment was terminated with effect from 23 October 2015. The termination letter stated that “your performance has not been of a satisfactory standard and as such your probation with Aspen has been unsuccessful.” The letter, which was on AHS letterhead, referred to “Aspen Healthcare Solutions UK Ltd (“Aspen”)”.

[7] As previously noted, Mr Endres’ general protections application was received by the Commission on 12 November 2015. In his application, Mr Endres alleged that he was dismissed in contravention of s.340 of the Act which deals with protection concerning the exercise or otherwise of a workplace right.

The Respondent’s case

[8] Key aspects of Aspen’s written and oral submissions were that:

• on 20 May 2015 the United Kingdom Government awarded AHS a contract (the UK Contract) to staff and manage Ebola Treatment Centres in Sierra Leone;



• the health professionals and other support staff who worked in Sierra Leone under the UK Contract were employed by AHS;



• Aspen provided some support to AHS as it had performed a similar role in Sierra Leone under contract to the Australian Government (the Australian Contract), with that support including using some of the staff that worked on the Australian Contract as they had recent experience in dealing with employees working in relevant circumstances;



• AHS paid Aspen for the services it provided to it;



• Aspen personnel officers assisted with the recruitment of employees for the UK Contract, with those employees, including Mr Endres, advised by Aspen at the time of their recruitment that they would be contracted to work for a subsidiary company based in the United Kingdom;



• there was an agreement between AHS and Aspen that for the purposes of cost efficiency, stationary and clothing used for the Australian Contract would also be used by AHS employees for the UK Contract;



• the staff named in Mr Endres application were at all times employed by AHS;



• Mr Endres’ employment agreement was with AHS;



• the decision to terminate Mr Endres’ employment was made by AHS;



• AHS was Mr Endres’ employer in both form and substance, notwithstanding the corporate relationship between AHS and Aspen;



• AHS was not just a funding vehicle for the UK Contract;



• AHS would have derived the benefits of successful performance of the UK Contract, just as it would have borne any penalties for failing to meet its obligations under that contract;



• AHS had existed for many years; and



• there was ample evidence that AHS was Mr Endres employer.

[9] In support of its submissions, Aspen provided a range of documents, including Mr Endres’ contract of employment and correspondence sent to him at the time of his deployment to Sierra Leone. Those documents are discussed in further detail below.

The Applicant’s case

[10] Mr Endres contended in his submissions that:

• the job description for his position in Sierra Leone was for an employee of Aspen;



• he was required to wear Aspen uniforms;



• he was required to use Aspen policies and submit complaints/incident reports on Aspen letterhead;



• he was required to submit expense claims to Aspen in Australia on “aspenmedical” forms;



• he was given no option but to deal with Aspen human resources staff in Australia;



• all human resource issues relating to the UK Contract were dealt with by Aspen;



• all the persons he dealt with before, during and after his employment were employed by Aspen;



• his remuneration was paid into an Australian bank account;



• he was only given the option of accessing Aspen’s Employee Assistance Scheme;



• he was advised that there was no possibility of dealing with AHS regarding human resource or staff related issues;



• it was extremely clear to him and other staff that there was no relationship with AHS;



• Aspen’s attempts to refute his submissions were not supported by evidence;



• he disputed that Aspen undertook the provision of services to AHS on a contractual basis;



• Aspen had full responsibility for the project; and



• he had not previously seen the AHS Grievance Policy which was included in the Deployment Pack sent to him.

[11] In response to a question from the Commission, Mr Endres acknowledged that his contract of employment did cite AHS as his employer, adding that this was explained to him as being nothing more than a funding arrangement.

[12] Mr Endres also provided a number of documents and photographs to support his submissions. These are again discussed in further detail below.

The Relevant Legislation

[13] Sections 337, 338 and 339 of the Act set out the application of Part 3-1 – General protections of the Act. For the purposes of this matter, ss.337 and 338 are the most relevant provisions and provide as follows:

“Division 2—Application of this Part

337 Application of this Part

This Part applies only to the extent provided by this Division.
Note: Sections 30G and 30R extend the operation of this Part in a referring State.

338 Action to which this Part applies

(1) This Part applies to the following action:

(a) action taken by a constitutionally-covered entity;
(b) action that affects, is capable of affecting or is taken with intent to affect the activities, functions, relationships or business of a constitutionally-covered entity;
(c) action that consists of advising, encouraging or inciting, or action taken with intent to coerce, a constitutionally-covered entity:

(i) to take, or not take, particular action in relation to another person; or
(ii) to threaten to take, or not take, particular action in relation to another person;

(d) action taken in a Territory or a Commonwealth place;
(e) action taken by:

(i) a trade and commerce employer; or
(ii) a Territory employer;
that affects, is capable of affecting or is taken with intent to affect an employee of the employer;

(f) action taken by an employee of:
(i) a trade and commerce employer; or
(ii) a Territory employer;

that affects, is capable of affecting or is taken with intent to affect the employee’s employer.

(2) Each of the following is a constitutionally-covered entity:

(a) a constitutional corporation;
(b) the Commonwealth;
(c) a Commonwealth authority;
(d) a body corporate incorporated in a Territory;
(e) an organisation.

(3) …”

[14] Section 12 of the Act defines a constitutional corporation as “a corporation to which paragraph 51(xx) of the Constitution applies.”

[15] Paragraph 51(xx) of the Australian Constitution applies to “foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth.”

Consideration of the issues

[16] Attached to Aspen’s Form F8A was a copy of AHS’ certificate of incorporation which indicates that AHS was incorporated under the Companies Act 2006 (UK) on 5 May 2010.

[17] Also attached to Aspen’s Form F8A was a copy of Mr Endres’ contract of employment. The covering letter to that contract reads as follows:

“We are delighted that you have accepted our offer of employment as Environmental Health Officer for Aspen Healthcare Solutions UK Ltd (referred to as the “Company”).

This letter constitutes your contract of employment and service agreement with the Company and includes those applicable terms of your employment as required by section 1 of the Employment Rights Act 1996. Please confirm your acceptance by signing and returning one copy, you are advised to retain additional copy for your own records.”

[18] Mr Endres signed the contract of employment on 11 August 2015.

[19] The name and address of the employer cited in the contract of employment is “Aspen Healthcare Solution UK Ltd, Birmingham Research Park, Vincent Drive, Edgbaston, Birmingham B15 2SQ United Kingdom”. The contract of employment also states that “This contract shall be governed by and construed in accordance with the laws of England” and “You hereby irrevocably submit to the non-exclusive jurisdiction of the courts of England.”

[20] As part of its written submissions, Aspen provided copies of two emails to Mr Endres regarding the EHO position. The first is dated 16 June 2015 and is from Ms Madeleine Carolan. The email reads as follows:

“… has passed on your email and CV to Aspen in regards to current EHO opportunities.

Our subsidiary company in the UK, Aspen Healthcare Solutions has been contracted by the UK Government to provide clinical services to the Kerry Town Ebola Treatment Unit (KTTU) in Sierra Leone.” (Underlining added)

[21] The second email, also from Ms Carolan, is dated 3 July 2015 and states, among other things, that:

“… As we discussed a position exists for an EHO in Sierra Leone departing Australia on 8 July – 30 August 15 …

Attached is also a deployment brief and a position description for the EHO position. Aspen Health Care Solutions is our subsidiary company based in the UK. The UK Government has contracted Aspen Health Care Solutions to provide clinical services to the Kerry Town Ebola Treatment Unit. The project team is contracted by Aspen Health Care Solutions and will be paid in Great British Pounds.” (Underlining added)

[22] I note that Ms Carolan’s contact details on both of the above emails were all in Australia, with the signature block on the second email referring to “aspenmedical”.

[23] At the Commission’s request, Aspen provided after the telephone hearing 1 a copy of an email sent to Mr Endres on 5 August 2015 by Ms Emma Moffitt prior to his deployment to Sierra Leone which was referred to by Aspen in its oral submissions. Ms Moffitt’s signature block on the email described her as Project Officer Personnel with her address shown as Deakin in the ACT and her phone numbers all being Australian phone numbers. Attached to that email, were an AHS document titled Ebola Response Pre-deployment Information and an electronic version of AHS’s Deployment Pack. The AHS Deployment Pack had attached to it a number of policies, including nine AHS policies on issues such as absence management, AHS’ Code of Conduct, discipline, equality and diversity, grievances and social media and external communication. The Deployment Pack also had attached to it one Aspen policy, Aspen Medical Notification and Continuous Disclosure Policy, and an Aspen information sheet titled Absorbing the Shock of Significant Events and Change. More specifically, the AHS Deployment Pack was comprised of the following fifteen documents:

• nine AHS policies;



• the abovementioned Aspen policy and Aspen paper;



• a document issued by Public Health England titled Ebola: Information for humanitarian aid and other workers intending to work in Ebola affected countries in West Africa;



• the AHS document Ebola Response Pre-deployment information; and



• two other documents titled AHS – West Africa payroll details and AHS – West Africa personal details.

[24] In short, twelve of the fifteen documents which comprised the AHS Deployment Pack were AHS documents.

[25] With regard to the Aspen Medical Notification and Continuous Disclosure Policy, Mr Endres highlighted in his submissions that the policy defines employer as meaning Aspen. However I note that the policy defines employer as meaning “Aspen Medical, or related entity” (underlining added). In other words, the application of the policy is not limited to Aspen.

[26] As to the documents provided by Mr Endres, they included:

• a copy of the Position Description for an EHO position in West Africa which cited the company as Aspen Medical Pty Ltd;



• an extract from Aspen’s Facebook page which read, inter alia, as follows:

“Aspen Medical was one of the only organisations in the world to be contracted by three separate countries to deliver their Ebola Response. The company managed the Australian Government’s ETC in Sierra Leone from mid-December 2014 until the end of April 2015. Aspen Medical has continued to play a crucial role in Sierra Leone where it manages the Kerry Town Treatment Unit on behalf of the UK Government …”;

• a copy of an Aspen Medical expense claim form;



• a copy of his travel itinerary to and from Sierra Leone which cites Aspen Medical as the debtor; and



• a number of emails all of which have a signature block referring to “aspenmedical”, including an email from Mr Al Martin, Country Director, Sierra Leone.

[27] While the material before the Commission is somewhat confusing as to the identity of Mr Endres employer, I note that the emails sent to Mr Endres on 16 June and 3 July 2015 both refer to AHS and that the contract of employment which he signed on 11 August 2015 is unambiguous in citing AHS as his employer. Beyond this, the documents which comprised the AHS Deployment Pack provided to Mr Endres on 5 August 2015 were overwhelmingly AHS documents and policies, further supporting a finding that AHS was Mr Endres employer. I note that the signature block on many of the emails provided to by Mr Endres refer to “aspenmedical” and that this is consistent with Aspen’s submissions that it was contracted to provide services to AHS. However, I also note that no evidence was provided to either substantiate or contradict Aspen’s submission in that regard. With particular regard to the emails and other documents provided by Mr Endres, they are not sufficient in my view to contradict the very clear terms of the contract of employment regarding the identity of the employer and the laws governing the contract.

[28] In summary, the weight of material before the Commission points to Mr Endres having been employed by AHS and not Aspen.

[29] As noted above, AHS was incorporated in the United Kingdom on 5 May 2010. It therefore is not a constitutionally-covered entity for the purposes of s.338(2) of the Act. Accordingly, AHS is not covered by Part 3-1 of the Act, meaning that Mr Endres application is incompetent.

Conclusion

[30] For all the above reasons, I have concluded that Mr Endres was not employed by Aspen but by its United Kingdom subsidiary, AHS, and that AHS is not covered by Part 3-1 of the Act as it is not a constitutionally-covered entity for the purposes of s.338(2) the Act. As such, Mr Endres’ application is incompetent and will be dismissed. An order to that effect will be issued with this decision.

Appearances:

P. Endres on his own behalf.

Y. Kuruc for Aspen Medical Pty Ltd T/A Aspen Medical.

Hearing details:

2016.

Canberra and Clifton Beach (Queensland) (telephone hearing):

February 12.

 1   Mr Endres was provided until cob on 19 February 2016 to provide any submissions he may wish to regarding the email provided by Aspen. Mr Endres did so on 18 February 2016.

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