Pingle Hong v Baiada
[2022] FWC 1008
•3 MAY 2022
| [2022] FWC 1008 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Pingle Hong
v
Baiada
(U2020/16199)
| COMMISSIONER MATHESON | SYDNEY, 3 MAY 2022 |
Application for an unfair dismissal remedy – jurisdictional objection that Respondent was not the employer of the Applicant and did not dismiss the Applicant – jurisdictional objection upheld – application dismissed.
On 20 December 2020, Mr Pingle Hong (Applicant) applied to the Fair Work Commission (Commission) for an unfair dismissal remedy under Part 3-2 of the Fair Work Act 2009 (Cth) (FW Act) in relation to the termination of his employment with Baiada (Respondent).
This matter appears to have been encumbered with complexity from the outset and has stalled in its progression at various stages before being allocated to me at the end of last year. Examples of the complexity surrounding the application have included that, on the face of the materials, the application appears to have been made out of time, there appears to have been confusion as to who the Applicant’s employer was at the time of his dismissal and the Applicant does not speak or understand English and is unfamiliar with the relevant legislation and processes of the Commission.
Background
On 4 August 2021, the Commission wrote to the Applicant noting that, based on the date of dismissal provided by the Applicant, being 3 October 2020, it appeared the application had been filed 57 days late. The email explained the circumstances in which an extension of time for the filing of an application can be granted and requested that the Applicant respond in writing by 9 August 2021 explaining why he considers his circumstances are exceptional and providing supporting evidence. At the same time, the Commission sought a response to the application from the Respondent.
On 9 August 2021 the Applicant responded to the Commission’s email of 4 August 2021. The response noted that the Applicant’s awareness of the law is weak and that he does not understand English and stated it “was through legal aid lawyers that I learned that you can help me to redress my grievances, so the time delay was so long”. No other evidence or accompanying documentation was provided.
On 9 August 2021, the Respondent also responded to the Commission’s email of 4 August 2021. The response stated that the Applicant was never an employee of the Respondent and that the Applicant was employed by an entity named “GGPB”, which provides boning services to the Respondent at its Tamworth Plant. Contact details for “GGPB” were supplied.
On 9 August 2021, the Commission wrote to the Applicant seeking to understand from the Applicant whether he agrees that he was not an employee of the Respondent and was an employee of “GGPB”. The Commission also sought confirmation from the Applicant as to whether he wished to amend his application to identify “GGPB” as the respondent. No response was received from the Applicant and follow up emails were sent. On 14 October 2021, the Commission wrote to the Applicant stating that it had not received a response and that, if a response was not received within 7 days, the Commission would assume that the Applicant no longer wished to pursue the application and would dismiss it.
On 20 October 2021, the Applicant called the Commission with the assistance of a friend who acted as his interpreter. The Applicant indicated he was going to send the Commission a response to the email of 9 August 2021, providing accompanying payslips. On 21 October 2021, the Applicant emailed the Commission two PAYG payment summaries for the years ending 30 June 2020 and 30 June 2021. The PAYG payment summaries identify the payer as “GGPB Power Pty Ltd” with the ABN “99607221554”, however the footer of the payment summaries suggests that the system generating the PAYG payment summaries was “Sage MicrOpay (Registered to Baiada Poultry)”.
On 21 October 2021, the Applicant also emailed the Commission with a response to its email seeking to understand from the Applicant whether he agrees that he was not an employee of the Respondent and was an employee of GGPB. In this email, the Applicant indicated:
· he was employed by GGPB Power Pty Ltd (GGPB), which was a labour hire agency that sent him to the Respondent’s factory to cut chickens and lift plastic baskets of chickens, and he worked there for 1 year and 9 months;
· the payments on his payslips were calculated on the hours he worked each week however GGPB and the Respondent also paid him cash based on his daily workload completed;
· he recorded his workload daily and provided the list to a person named “Tony” from GGPB and also provided lists to the Respondent’s site manager or supervisor. The Applicant advised that he did not know the name of this person but he always wore a rep cap and everyone called him “Red Cap”; and
· the PAYG payment summaries for the years ending 30 June 2020 and 30 June 2021 included payer details for GGPB but were issued by “Baiada Pty Ltd”.
The Applicant’s email of 21 October 2021 also sought advice from the Commission as to whether he needed to amend the application to identify GGPB as the one respondent or to identify both GGPB and the Respondent as respondents. The Commission responded to the Applicant’s email on 21 October 2021, noting it was unable to tell him what to do but offered to make arrangements for the Applicant to obtain legal advice through the Commission’s Workplace Advice Service. The Applicant took up the Commission’s offer and was subsequently referred to the Workplace Advice Service.
The case management hearing
The matter was subsequently allocated to my Chambers and I set the matter down for a case management hearing on 2 December 2021. During the case management hearing, the Applicant clarified that he did not wish to amend his application to change the name of the Respondent to “GGPB Power Pty Ltd” however he wanted to add it as a respondent to the application. The Applicant confirmed that he had not notified GGPB about his application for an unfair dismissal remedy.
The Respondent pressed its jurisdictional objection that the Applicant was not an employee and that it did not dismiss him and that he was dismissed by GGPB. The Respondent indicated that it was informed by GGPB that the Applicant’s employment was terminated because he was fighting with another employee, that a workers compensation claim against GGPB was made by the Applicant, that this claim was accepted by GGPB’s workers compensation insurer and that he was paid workers’ compensation payments for a period of time in relation to his injuries. The Applicant indicated he was not in a fight and was injured by another employee.
The Respondent said that the Applicant was an employee of GGPB, which was a contractor engaged by the Respondent to carry out deboning functions. The Respondent said that this work is carried out at the Respondent’s site and that the Respondent’s supervisor does monitor the deboning function to ensure it is carried out properly. The Respondent said that it provides payroll services to GGPB as part of an agreement it has with the Fair Work Ombudsman so that it can ensure its contractors are paying their employees in accordance with the Poultry Processing Award 2020. The Respondent said that, while it provides payroll services to GGPB, whoever GGPB employs and dismisses has nothing to do with the Respondent. The Respondent submitted that a determinative conference would be the best way to determine the jurisdictional objection.
Having heard the views of the Applicant and the Respondent at the case management hearing, I considered options as to the best way to deal with the matter. Given the Respondent insisted that it was not the employer of the Applicant, it was apparent that this was a threshold matter that needed to be determined and, accordingly, directions were set down for the filing of submissions in relation to the jurisdictional objection.
In issuing the directions, I have been guided by the comments of the Full Bench of the Australian Industrial Relations Commission in Re Advanced Australian Workplace Solutions Pty Ltd[1] which said:
“[94] Although not the subject of any submission, we say something about the procedure to be followed when a threshold issue arises, as in this case, as to whether the respondent named in a s.170CE application was the employer of the applicant. In our view, in such cases, the applicant should go first and adduce evidence directed at establishing that he or she was employed by the respondent. The respondent should then be invited to call evidence on the issue. It will be a matter for the respondent to decide whether or not to call evidence. The respondent may choose to call no evidence and submit that the applicant has failed to establish that the respondent was the employer.
[95] We express this view because we think that establishing that the respondent is the employer is an essential element in an applicant’s case as establishing that he or she was employed by the respondent. The respondent should then be invited to call evidence on the issue. It will be a matter for the respondent to decide whether or not to call evidence. The respondent may choose to call no evidence and submit that the applicant has failed to establish that the respondent was the employer.”
Directions were issued for the filing of submissions and the matter was set down for a determinative conference, which was originally to occur on 21 January 2022. On 21 January 2022, it was apparent that the Applicant was not prepared to proceed with the determinative conference and I agreed to an extension of one week, such that the matter was re-listed for hearing on 28 January 2022.
The Applicant’s submissions
The Applicant filed materials on 16 December 2021, addressing why he believed the Respondent was his employer.
These materials included a translated statement in which the Applicant, by way of summary, said:
· The Applicant’s workplace is inside the Respondent’s factory.
· The Applicant had signed a contract but did not receive a copy of the contract for his records and could not understand the contract as it was in English.
· The supervisor at GGPB did not translate each item of the contract and only asked the Applicant to sign and date the contract.
· The Applicant was not told clearly who his employer was and the Respondent’s staff were involved in the process of signing the contract and completing the induction procedure.
· The Applicant was issued a work card (number CO2385) and it was issued at the Respondent’s office, who charged him a deposit of $20 for the card.
· The Respondent’s supervisor has the work card of each employee working in the chicken cutting room, “is responsible for swiping the card” and takes a roll call at the beginning and end of each shift. Fingerprinting is required to get to and from the workshop within the factory and is used to calculate working time.
· The Respondent’s staff distribute personal protective equipment including overalls, headgear, masks and gloves.
· The quantity and weight of each day’s work completed by employees is recorded by a supervisor of the Respondent who wears a red cap. This person is responsible for the daily management, quality inspecting and weighing of the products.
· The Respondent and GGPB both settle the figures of the wages earned by each employee in respect of the day’s work.
· The employees in the chicken cutting room are not merely paid an hourly rate but are paid more for working time. The hourly rate is the minimum wage and a cash portion is calculated by multiplying the unit price by the number of finished products, which is recorded by the Respondent’s supervisor who wears the red cap. The cash portion is paid to employees by GGPB.
· The Respondent’s supervisor confiscated the Applicant’s work card following the incident on 3 October 2020.
· Tony (who I have assumed is Tony of GGPB who the Applicant referred to in the case management hearing) coaxed the Applicant into writing an incident report that was not factually correct and which was to be provided to the Respondent’s factory manager.
· The work processes, wages earned and rules and regulations to be complied with within the factory are all subject to the Respondent’s management and the Respondent shares responsibility for the incident.
The Applicant also filed various WeChat images including a floor plan, images of injuries and an image of a metal object.
On 19 January 2022, the Applicant emailed my Chambers stating, by way of summary:
· he always held the belief that both the Respondent and GGPB were the respondents;
· although GGPB signed a labour contract with him and paid him his salary, the work he did was for the Respondent;
· he does not know the relationship between GGPB and the Respondent;
· while the Respondent outsources its work, he believes it still has responsibilities in relation to the incident; and
· he agrees to “transfer the testimony of the defense to GGPB”.
The Applicant attended the hearing on 28 January 2022 with his support persons Mrs Hong and Ms Ong. An interpreter was also present.
The Applicant gave evidence on his own behalf at the hearing. The Applicant’s evidence was that:
· the Applicant wife’s worked in the Respondent’s factory and suggested that he also seek employment at the factory;
· he spoke to Tony about securing a role;
· he was employed to cut chickens;
· he signed an employment contract with “Susan” and “Tony”. Susan was Tony’s wife and Tony was a supervisor employed by GGPB;
· in addition to the amounts reflected on his PAYG summaries, he received cash payments from GGPB;
· he received pay slips weekly and the name of the employer on the payslips is identified as GGPB; and
· when he was working, he would listen to the directions of Tony, who is employed by GGPB, however Tony received directions from the Respondent’s supervisor with the red cap.
The Respondent’s submissions
On 10 January 2022, the Respondent filed its submissions and, by way of summary, submitted:
· No jurisdiction can be enlivened if an employment relationship does not exist. The Applicant was not its employee at any time and the application, to the extent that it is made against the Respondent, does not attract jurisdiction and must be dismissed.
· While the Applicant performed work at the Respondent’s Tamworth site, that is not due to there being an employment relationship between the Applicant and Respondent. The correct explanation is that the Applicant’s work at the site was the consequence of his employment with GGPB.
· The circumstances are comparable to commercial arrangements whereby a principal (often referred to as ‘host employer’) contracts with a labour hire business for the provision of workers to perform work at the principal’s business. The performance of work under such arrangements does not create an employment relationship between the worker and the principal/host employer (referring to FP Group v Toohey Pty Ltd (2013) FWCFB 9605; (2013) 238 IR 239 at 246 [19]; Wilton v Coal & Allied Operations Pty Ltd (2007) 161 FCR 300 at 386 [187]).
· Similarly, the carrying out of the Applicant’s employment with GGPB at the Respondent’s Tamworth site did not create an employment relationship between the Applicant and the Respondent. There was no contract of employment (express or implied) between the Respondent and the Applicant.
· Insofar as the Applicant claims that he was employed jointly by GGPB and the Applicant, that claim cannot succeed as the concept of joint employment is not part of the common law in Australia (referring to FP Group v Toohey Pty Ltd (2013) FWCFB 9605; (2013) 238 IR 239 at 257 [44]).
The Respondent also filed a witness statement of Ms Sonia Takla, National Industrial Relations Manager of the Respondent. My way of summary, Ms Takla said in her statement that:
· She directed a review of employment records for the Tamworth facility and based on that review is satisfied the Applicant was not employed by the Respondent at any time during the relevant period. It is well-established practice within the Respondent’s group, including the Tamworth facility, that employees of the Respondent are provided with a written contract of employment. Ms Takla is satisfied that the Applicant was not offered and did not accept an employment contract with the Respondent.
· The WeChat images provided by the Applicant include a workplan with the work number 2385 identified in red font and, based on the information she has obtained, Ms Takla is satisfied that the work performed in the area was carried out by a contractor to the Respondent, GGPB.
· At the relevant times, work card number CO2385 was allocated to the Applicant as an employee of GGPB. It is a requirement of the Respondent that workers at the Respondent’s work sites, including employees of labour hire firms and contractors, are issued and required to wear at all times while on site a work card with photo ID and other information including the worker’s employer. The Applicant’s work card identifies his employer as GGPB.
· Based on her enquiries, Ms Takla believes the Applicant’s reference to “Tony” is a reference it to Applicant’s GGPB supervisor Mr Daidong Lui who is referred to on site as “Tony”. Ms Takla stated that Mr Lui is an employee of GGPB.
A number of documents were attached to the statement of Ms Takla. These included:
· A copy of the work card CO2385 which, in addition to identifying the name of the Applicant, names “GGPB” and includes the ABN “99607221554”.
· A copy of a “GGPB Power Pty Ltd New Employee Details Form”, which includes the name and contact details of the Applicant, bank details, confirmation of provision of the Fair Work Information Statement and which appears to have been signed on 19 February 2019.
· A copy of a document entitled “GGPB Power Authority to Send Payslips by Email”, which includes the name of the Applicant, what appears to be his email and signature and a request that the completed form be returned, providing two email addresses ending in “baiada.com.au”.
· A copy of a document entitled “Tamworth GGPB Power – Pay Rules (7.6 hrs per day)” which appear to set out a summary of award entitlements and which appear to have been signed by the Applicant on 19 February 2019.
· Four pay slips which identify the Applicant as the employee and state that his employer is “GGPB Power Pty Ltd” with the ABN “99607221554” provided. The documents include reference to payments made to “GGPB Power AustraliaSuper”.
· A copy of a letter to GGPB Power Pty Ltd from icare (Insurance and Care NSW) dated 21 April 2021, which indicates that a claim has been made in relation to the Applicant for an injury incurred on 3 October 2020. The letter states:
“Hello,
I am writing to let you know that now your employee’s worker’s compensation claim has been accepted, I will be their case management specialist and will be here to support their recovery, manage their claim and help them with their treatment….”
Mr Doyle of the Australian Federation of Employers and Industries represented the Respondent at the hearing.
Ms Takla’s witness statement was tendered as evidence and she gave evidence for the Respondent at the hearing that:
· The part of the operation where the Applicant worked was contracted out to GGPB.
· All workers who work on the Respondent’s site are issued an identification card that is issued after checks have been conducted to ensure that they are legally permitted to work pursuant to migration laws. This card is given to all persons on site no matter whether they are a contractor, employee or employee of a labour hire firm.
· There is a compliance deed between the Fair Work Ombudsman and the Respondent whereby it was agreed that the Respondent would provide payroll services to GGPB and this is why the Respondent had access to copies of payslips. A fee is charged to GGPB for the payroll services the Respondent provides to it.
During cross examination by the Applicant, Ms Takla was asked a question regarding why the Respondent would pay to have a supervisor present on site. Ms Takla’s evidence was that:
· a supervisor from the Respondent is on site to oversee the operations and make sure contractors are performing to required standards;
· the Respondent has a duty of care to people working on its premises and, while the supervisor is on site to oversee the contractors, the Respondent does not have control over who GGPB employs as long as they are meeting the Respondent’s requirements that the persons GGPB employs are legally permitted to work; and
· the Respondent is responsible for the safety of every worker on premises and that is why it has a supervisor on site. It is not responsible for the contractor’s employees, but does supervise contractors to ensure they are meeting the Respondent’s requirements.
During cross examination, Ms Takla was asked why no interpreters were on site when the Applicant signed the employment contract and why the Respondent did not tell the Applicant who his employer was. Ms Takla’s evidence was that the Respondent did not offer the Applicant employment as employment was offered by GGPB and this process had nothing to do with the Respondent.
Ms Takla was also asked why the Respondent took part in the recruitment of persons who it says are not its employees. Ms Takla’s evidence was that it does not take part in the recruitment and has nothing to do with who GGPB employs but it does require that the worker participate in an induction process after GGPB has employed them and brought them onto the Respondent’s premises. Ms Takla said this involves making sure persons on site know where the bathrooms and canteen are and the procedures that they need to abide by when on the Respondent’s premises.
GGPB Power Pty Ltd (GGPB)
Despite the apparent agreement between the parties that GGPB employed the Applicant, neither party called a representative of GGPB as a witness in the proceedings. As such, I notified the parties of my intention to invite GGPB to attend the hearing and to provide submissions, in which case the parties would be invited to make any further submissions in response. I also sought the consent of the parties to share the digital court book prepared by my chambers for the matter with GGPB.
GGPB did not file any submissions, despite being invited to, however it did send a representative to attend the hearing that took place on 28 January 2022, Mr Charles Tse. At the hearing, GGPB confirmed that it employed the Applicant.
Consideration
It was the position of both the Applicant and the Respondent that GGPB was the employer of the Applicant.
In considering the evidence and material as a whole, the following may point to an employment relationship between the Applicant and GGPB:
· the Applicant spoke to Tony, the supervisor employed by GGPB, about securing a role working at the Respondent’s Tamworth factory;
· when the Applicant signed an employment contract, this occurred before Tony and Susan, who was Tony’s wife;
· the payslips and PAYG payment summaries given to the Applicant identify GGPB as the employer;
· the Applicant’s evidence was that the cash payments made to him were paid by GGPB;
· the Applicant received pay slips weekly and the name of the employer on the payslips is identified as GGPB;
· when the Applicant was working he would listen to the directions of Tony, the supervisor employed by GGPB;
· a “GGPB Power Pty Ltd New Employee Details Form” which appears to have been signed on 19 February 2019 suggests that GGPB is the Applicant’s employer;
· the Applicant made a workers’ compensation claim for an injury incurred on 3 October 2020 and the letter to GGPB from icare (Insurance and Care NSW) dated 21 April 2021 identifies GGPB as the Applicant’s employer; and
· GGPB’s acknowledgement during the hearing that it employs the Applicant.
The complication arises in that the Applicant says that the Respondent is also its employer and has named only the Respondent in its application. The Respondent says it is not the employer of the Applicant.
Whether or not an employment relationship exists between the Applicant and Respondent is a question of fact that I need to determine. There can be no employment relationship without a contract of services. In this matter, a preliminary consideration arises and that is whether there is a contract at all. The elements of contract were set out in Re Advanced Australian Workplace Solutions Pty Ltd[2] as follows:
“[49] We have earlier set out the facts in some detail. They clearly show that there was a relationship (a word used by Simmonds C in his decision and a word on which Mr Willoughby-Thomas placed considerable emphasis) between Ms Fox and Kangan. A relationship, however, is not necessarily a contract: see, for instance, the cases to which we refer in the following paragraphs. The elements of a contract are stated in Macken, McCarry and Sappideen's "The Law Of Employment" (4th edition, 1997 by the Hon James Macken, Paul O'Grady and Carolyn Sappideen) (Macken, McCarry and Sappideen), a text to which reference was made both before Simmonds C and us, as follows (p.74):
“The law holds that before any simple contract is enforceable it must be formed so as to contain various elements. These are:
1. There must be an ‘intention’ between the parties to create a legal relationship, the terms of which are enforceable.
2. There must be an offer by one party and its acceptance by the other.
3. The contract must be supported by valuable consideration.
4. The parties must be legally capable of making a contract.
5. The parties must genuinely consent to the terms of the contract.
6. The contract must be entered into for any purpose which is illegal.”
In relation to the first of these elements, the learned authors say (p.74):
“The first element essential to the existence of any contract is the requirement that the parties have a mutual intention to create a legally enforceable bargain.””
I accept that the Applicant carried out his work at the Respondent’s premises. I also accept that the Respondent had work health and safety responsibilities in relation to all persons working on its site. In these circumstances, I accept that it is appropriate for the Respondent to have an employee on site to monitor contractor compliance with the Respondent’s requirements. However, I am not persuaded that this person was directing the work activities of the Applicant and it was the Applicant’s own evidence that he received direction from Tony, an employee of GGPB. In the context of its responsibilities under work health and safety legislation, it is also unremarkable for a person in control of a business or undertaking, such as the Respondent, to subject persons entering its site to a site induction process.
I also accept that the Respondent has entered into a compliance arrangement with the Fair Work Ombudsman and that, as a result, it provides payroll services to GGPB in order to drive enhanced compliance outcomes.
Based on the evidence before the Commission, I am not satisfied that the elements of a contract between the Applicant and Respondent exist or that a contract exists between the Applicant and Respondent. It follows that I am not satisfied that the Respondent was the Applicant’s employer or that the Respondent dismissed the Applicant from his employment.
The application is made in relation to the Respondent and, on the basis of my finding that the Respondent is not the Applicant’s employer and that the Respondent did not therefore dismiss the Applicant from his employment, I dismiss the application.
That having been said, the Applicant may wish to consider making a fresh application in relation to the other entity he says is his employer, being GGPB. If the Applicant embarks on this course of action, the application will be made out of time and the Commission will need to decide whether it will allow a further period for the application to be made if it is satisfied that there are exceptional circumstances taking into account the criteria in section 394(3) of the FW Act.
COMMISSIONER
Appearances:
Mr P Hong on his own behalf.
Mr T Doyle on behalf of the Respondent.
Hearing details:
2022.
Sydney (By Video using Microsoft Teams).
28 January 2022.
[1] Re Advanced Australian Workplace Solutions Pty Ltd, Print S0253.
[2] Re Advanced Australian Workplace Solutions Pty Ltd, Print S0253.
Printed by authority of the Commonwealth Government Printer
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