Philip Meddows v Australian War Memorial

[2022] FWC 1466

[2022] FWC 1466

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Philip Meddows
v

Australian War Memorial

(U2022/1036)

COMMISSIONER MCKINNON SYDNEY, 9 JUNE 2022

Application for an unfair dismissal remedy – jurisdiction – respondent not the employer.

1. Mr Philip Meddows has applied for an unfair dismissal remedy in relation to his former work for the Australian War Memorial. The Australian War Memorial objects to the application on the basis that it did not employ Mr Meddows. The question is whether Mr Meddows was employed by the Australian War Memorial.

1. I have decided that Mr Meddows was not employed by the Australian War Memorial. The application will be dismissed. These are my reasons for decision.

Identity of employer

1. Mr Meddows started working at the Australian War Memorial on 1 June 2016. At the time of dismissal, he worked in the role of Last Post Ceremony Web Broadcast Operator on a casual basis. On 6 January 2022, he was dismissed on the grounds of failure to wear an appropriate face mask and failure to follow the directions of security. Mr Meddows disputes the allegations and says that he was dismissed without warning while seeking clarification about an appropriate mask for him to wear and taking steps to comply with the mask requirements.

1. The work Mr Meddows performed for the Australian War Memorial was on an “on-hire casual” basis, arranged through HOBAN Recruitment (HOBAN). The Australian War Memorial engages HOBAN to provide recruitment services through a Deed of Standing Offer (DH1358-48) established under the Australian Digital Health Agency’s Recruitment Services Panel Arrangement.

1. Mr Meddows signed an Employment Contract with HOBAN on 26 October 2016. Relevant terms of the contract include that:

1. Mr Meddows was employed as a casual employee of HOBAN;

2. Mr Meddows was to be paid for his work on an hourly basis by HOBAN;

3. The contract applied to every assignment performed by Mr Meddows for HOBAN;

4. Termination of an assignment by HOBAN did not necessarily mean termination of the employment relationship;

5. There was no obligation on HOBAN to offer future work to Mr Meddows;

6. Day‑to‑day instructions were to be given to Mr Meddows by authorised representatives of clients of HOBAN;

7. HOBAN retained ultimate control of the Employee in relation to the performance of Mr Meddows’s work on assignment for it; and

8. The employment relationship was and remained between Mr Meddows and HOBAN and no employment relationship was created between Mr Meddows and any client of HOBAN to whom he may be assigned to work.

1. Mr Meddows relies on the practical reality of his workplace dealings to submit that his true employer was the Australian War Memorial. He submits that his duties were given to him by the Australian War Memorial, never by HOBAN. He was never able to negotiate the amount he was getting paid as a contractor, or his hours of work. That was all done through the head of department at the Australian War Memorial. Despite signing up as a contractor, his employment conditions were more as a ‘part-time employee’.

1. Much like the position in Workpac v Rossato[1], the contractual arrangements between Mr Meddows and HOBAN did not include a mutual commitment to an ongoing working relationship between them after the completion of each assignment. The express terms of their relationship were inconsistent with any such commitment, and it was on this basis that Mr Meddows was paid. While the performance of Mr Meddows’s obligations under the contract with HOBAN were organised in accordance with the operational requirements of the Australian War Memorial, the relationship remained one of casual employment.

1. As to the identity of the employer, it is clear on the materials that the employment relationship was between Mr Meddows and HOBAN, and not the Australian War Memorial. There is no evidence that the Employment Contract was either a sham or invalid on some other ground. The Employment Contract was entered into freely between the parties. It created rights and obligations as between Mr Meddows and HOBAN: to perform work, to be paid, to retain control over assignments, to confer and to take leave, to terminate the contract, to restrict certain activities and require others. It is neither necessary nor appropriate to delve further into the subsequent conduct of the parties to understand the terms of the contract between them.[2]

Conclusion

1. A person is protected from unfair dismissal if they are an employee who has completed at least the minimum employment period with their employer.[3] Further, only a person who has been dismissed can apply to the Commission for an unfair dismissal remedy. A person has been dismissed if their employment with their employer has been terminated on the employers’ initiative or they were forced to resign because of the conduct of their employer.[4]

1. The application made by Mr Meddows asserts that he was dismissed by the Australian War Memorial. However, Mr Meddows was not an employee of the Australian War Memorial. There was no employment relationship between them. As a result, he is not protected from unfair dismissal in relation to a period of employment with the Australian War Memorial, and his employment cannot have been terminated on the Australian War Memorial’s initiative.

1. Mr Meddows is not eligible to bring the application against the Australian War Memorial. The application is dismissed.

COMMISSIONER

Appearances:

P Meddows on his own behalf.
F Henderson for the respondent.

Hearing details:

2022.
Sydney (by video):
June 1.

[1] WorkPac Pty Ltd v Rossato [2021] HCA 23.

[2] Construction, Forestry, Maritime, Mining and Energy Union& Anor v Personnel Contracting Pty Ltd [2022] HCA 1.

[3] Fair Work Act 2009 (Cth), s.382.

[4] Act, s.386.

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