Pieter Jansen v Sodexo Remote Sites Australia Pty Limited
[2025] FWC 707
•11 MARCH 2025
| [2025] FWC 707 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s 394—Unfair dismissal
Pieter Jansen
v
Sodexo Remote Sites Australia Pty Limited
(U2024/11441)
| COMMISSIONER LIM | PERTH, 11 MARCH 2025 |
Application for an unfair dismissal remedy – whether applicant is a person protected from unfair dismissal – employment commencement date determined – minimum employment period met – protected from unfair dismissal.
What is this decision about?
Mr Pieter Jansen has applied to the Commission alleging that Sodexo Remote Sites Australia Pty Limited dismissed him unfairly. Sodexo says that Mr Jansen has not completed the minimum employment period and is therefore not protected from unfair dismissal.
Sodexo is not a small business employer and dismissed Mr Jansen on Wednesday 4 September 2024. This means for Mr Jansen to be protected from unfair dismissal under s 382 of the Fair Work Act 2009 (Cth), he must have been employed on or before Monday 4 March 2024. Sodexo says that Mr Jansen commenced his employment with them on Wednesday 6 March 2024. Mr Jansen says his employment commenced on Wednesday 28 February 2024.
I conducted a hearing on Wednesday 18 December 2024. I granted permission for Mr Patrick Mullally to represent Mr Jansen and for Mr Joseph Creese of Mills Oakley to represent Sodexo. Mr Jansen gave evidence in support of his case. Ms Sarah Richards (Talent Acquisition Consultant) and Mr Shaun Gibson (Regional Manager, Facilities Maintenance, Upper East Pilbara) gave evidence for Sodexo.
Having considered the relevant evidence and submissions of the parties, I find that Mr Jansen’s employment commenced on Wednesday 28 February 2024. He had served the minimum employment period and was protected from unfair dismissal at the time of his dismissal.
My detailed reasons follow.
How did Mr Jansen’s employment with Sodexo commence?
Mr Jansen previously worked for Sodexo from April 2019 to July 2022. In early 2024, Mr Jansen reached out to Mr Gibsonto ask if there were any Fly-In, Fly-Out roles available. Mr Gibson asked Mr Jansen to send in his resume and offered him a position as a FM Supervisor. Mr Gibson and Mr Jansen agreed that Mr Jansen would start on Wednesday 28 February 2024.
Originally, the plan was for Mr Jansen to be the supervisor for the ‘A-Swing’, with another supervisor on the ‘B-Swing’, on an ‘eight days on, six days off’ roster.
Approximately one week before Mr Jansen was due to be mobilised to site, Mr Gibson asked him if he could change to the B-Swing as the other supervisor had resigned. This meant that Mr Jansen would have been flying out to site on Wednesday 6 March 2024 rather than Wednesday 28 February 2024. Mr Jansen agreed to this.
On Thursday 22 February 2024, Mr Jansen was informed that he had been booked to attend Aveling Fire Training on Wednesday 28 February 2024, and Sodexo Onboarding Training on Thursday 29 February 2024 from 7:30am to 3:30pm.
While Mr Jansen was attending the Sodexo Onboarding Training, Ms Richards called him. Mr Jansen’s account is that Ms Richards said that his start date would be Wednesday 6 March 2024. Mr Jansen told Ms Richards that his start date was Wednesday 28 February 2024 as per his agreement with Mr Gibson. Mr Jansen further said that he would be starting his employment during his R&R cycle, and not on site.
Ms Richards’ recollection is that she called Mr Jansen to advise that she was requesting his employment contract with a start date of Wednesday 6 March 2024. Ms Richards’ evidence is that this was an ordinary conversation updating an employee regarding the status of their contract and she could not recall Mr Jansen raising concerns about his start date.[1]
On Thursday 29 February 2024, Ms Richards sent Mr Jansen a Docusign copy of his contract of employment. Mr Jansen signed it that day. The contract specified a start date of Wednesday 6 March 2024. Mr Jansen’s evidence is that he did not notice the start date when he signed it.
On Saturday 4 May 2024, Mr Jansen sent the following email to Mr Gibson:[2]
“Hi [Shaun],
As discussed with you last month, my agreed starting date was 28/02/2024. This was going to be my first swing but due to Sodexo operational requirements with [other supervisor] resigning I was asked to do a swing change. This however did not change my starting date with the company and just meant that I would start on my R&R cycle. When I was called by Sarah Richards and she asked what my starting date was I told her 28/02. She told me that I don’t get paid for R&R and that my starting date will be 06/03…so I left it there. When I received my pay for March I received $6,832.34 net. This pay was the correct pay at 8,306.26 net.
Subsequently I also lost out on super and AL accumulation on the first pay cycle.
Your help to correct this is appreciated.
Thank you,
Kind regards
Pieter”
Mr Gibson forwarded Mr Jansen’s email with the comment, “Hi Phil, Can you please assist with next steps to resolve this. It was my request to alter start date. This has impacted Pieter financially. Thanks, Shaun”.
Mr Jansen was subsequently paid two full days’ wages.
Submissions
3.1 Mr Jansen
Mr Jansen submits that although there is a comprehensive written contract between the parties, there was also an oral contract made between the parties. Mr Jansen relies on the Full Court of the Federal Court’s recent decision in EFEX Group Pty Ltd v Bennett,[3] specifically at [9] where the Full Court stated that “…the terms of an oral contract may be able to be inferred from the circumstances, including in whole or in part from the parties conduct or course of dealing between them, or implied where necessary for business efficacy…”
Mr Jansen submits that the evidence supports a finding that there was an oral employment contract, or oral term of the employment contract that Mr Jansen’s employment started on Wednesday 28 February 2024.
3.2 Sodexo
Mr Gibson’s and Ms Richards’ evidence is that Wednesday 28 February 2024 was a ‘target’ start date for Mr Jansen. Sodexo submits that Mr Jansen’s actual commencement date was subject to Mr Jansen completing all required pre-employment checks, satisfying training requirements and the issuing of a final offer of employment with his terms and conditions.
Sodexo submits that following the B-Swing supervisor’s resignation, Mr Gibson never informed Mr Jansen that his start date would remain Wednesday 28 February 2024 or that he would commence employment during his R&R period. Sodexo further submits that the Aveling Fire Training and Sodexo Induction were attended “pre-employment”, and that it paid for Mr Jansen to attend these as a gesture of goodwill.[4]
Sodexo makes the following submissions regarding the written contract of employment:
Schedule A of Mr Jansen’s employment contract explicitly outlines a commencement date of Wednesday 6 March 2024.[5]
Clause 27 of the contract (Entire Understanding) provides that the contract, “contains the entire understanding between the parties concerning the subject matter of the contract and supersedes all prior communications between the parties”. Further, that, “except as expressly stated in this Contract, [each] party has not relied on any representation, warranty or undertaking of any kind made by or on behalf of another party in relation to the subject matter of this Contract”.[6]
The parol evidence rule of contractual interpretation indicates that Clause 27 represents the entirety of the bargain struck between the parties in relation to Mr Jansen’s employment.
Consideration – what was Mr Jansen’s start date?
Sodexo states that the plurality in EFEX found that in circumstances where parties have comprehensively committed to a written contract, the obligations established by that contract are decisive. This misunderstands the decision; the plurality found that the obligations established by a written contract are decisive of the character of the legal relationship.[7]
In this matter, there is no contest that the legal relationship between Mr Jansen and Sodexo was one of employer and employee. What is in contest is when the legal relationship started.
I find that that in addition to the written employment contract entered into on Thursday 29 February 2024, Mr Jansen and Sodexo had an agreement to commence his employment with Sodexo on Wednesday 28 February 2024. I rely on the following in reaching this decision:
(a)Mr Jansen’s and Mr Gibson’s evidence that Mr Jansen was to mobilise to site for a Wednesday 28 February 2024 start.
(b)Sodexo directed Mr Jansen to attend the Aveling Fire Training and Sodexo Induction on Wednesday 28 and Thursday 29 February 2024 when his site mobilisation date changed.
(c)Sodexo paid Mr Jansen for his attendance at the Aveling Fire Training and Sodexo Induction.
(d)The Aveling Fire Training and Sodexo Induction did not take place “pre-employment”. Mr Jansen’s written employment contract details “pre-employment checks and requisite licences, authorisations and qualifications” as well as “pre-mobilisation briefing” requirements.[8] Neither the Aveling Fire Training nor the Sodexo Induction are listed under these categories.
I find that Clause 27 of the contract cannot negate that Mr Jansen had commenced work at an earlier date. It is simply not sensible to suggest that where a contract specifies a different employment start date to what occurred, that another term of that contract can wipe that reality out.
It follows that Mr Jansen has served the minimum employment period. He was protected from unfair dismissal at the time he was dismissed. The matter will now be programmed to determine the merits of Mr Jansen’s application.
COMMISSIONER
Appearances:
P Mullally of Workclaims Australia for the Applicant.
J Creese of Counsel for the Respondent.
Hearing details:
2024.
Perth:
18 December.
[1] Digital Court Book (DCB) 152 [12].
[2] Ibid 60-61.
[3] [2024] FCAFC 25.
[4] DCB (n 1) 109 [22]-[23].
[5] Ibid 36.
[6] Ibid 33.
[7] CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1, [43]-[44], per Kiefel CJ, Keane and Edelman JJ; [183], per Gordon J.
[8] DCB (n 1) 148.
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