Rosmaria Binti Ahmad Subki v Stanley Black & Decker Australia Pty Ltd
[2024] FWC 2654
•25 SEPTEMBER 2024
| [2024] FWC 2654 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Rosmaria Binti Ahmad Subki
v
Stanley Black & Decker Australia Pty Ltd
(U2024/7073)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 25 SEPTEMBER 2024 |
Application for an unfair dismissal remedy
Ms Rosamaria Binti Ahmad Subki has made an application to the Commission for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth) (Act). Ms Ahmad Subki alleges she was unfairly dismissed by the respondent, Stanley Black & Decker Australia Pty Ltd.
The respondent objects to the application. It says that Ms Ahmad Subki was not its employee and accordingly, it did not dismiss her (jurisdictional objection). The respondent’s position is that Ms Ahmad Subki was employed by a labour hire agency, ProQuest Recruitment Pty Ltd (ProQuest), which provides labour to the respondent pursuant to a labour-hire arrangement.
The matter was listed for hearing in respect of the respondent’s jurisdictional objection only. For the reasons that follow, I have concluded that Ms Ahmad Subki was not dismissed by the respondent because she was not an employee of it.
Context
Ms Ahmad Subki commenced employment with ProQuest on 12 January 2023 pursuant to a casual employment contract.[1] ProQuest was not named or otherwise joined as a respondent to this application. However, ProQuest’s Business Manager, Mr Olivier Toussaint, gave evidence that ProQuest is a labour hire company that employs staff for on-hire to clients to fill work assignments in exchange for a fee.[2] Mr Toussaint is responsible for managing the client relationship between ProQuest and the respondent.[3]
On or about 16 January 2023, Ms Subki commenced an assignment with the respondent to perform packing duties at its warehouse in Keysborough, Victoria. On 8 June 2024, the respondent contends that Ms Ahmad Subki was involved in a power industrial vehicle collision with another worker at its warehouse. Following this incident, the respondent informed ProQuest that Ms Ahmad Subki was no longer required to attend its warehouse to perform casual packing duties.
The issue to be determined
The issue to be determined in this application is whether Ms Ahmad Subki was dismissed by the respondent.
Section 394 of the Act relevantly provides that a person who has been dismissed may apply to the Commission for an unfair dismissal remedy. The circumstances in which a person is taken to be dismissed are relevantly set out in s 386(1) of the Act.
386 Meaning of dismissed
(1) A person has been dismissed if:
(a)the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b)the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
….
A person will not be eligible to make an application for an unfair dismissal remedy unless they have been dismissed by their employer.
Ms Ahmad Subki accepts that she was employed by ProQuest. However, she says that the respondent, which she refers to as SDB, “exerted substantial control over the key aspects of [her] employment.” Ms Ahmad Subki says this is evident because her “work duties, performance assessments and ongoing engagement were directly managed by SBD’s supervisory staff.” Further, Ms Ahmad Subki contends that “all decisions” concerning whether her placement with the respondent “would continue, or cease were determined solely by SBD.”[4] In this respect, although Ms Ahmad Subki concedes that ProQuest was responsible for her recruitment and pay, she submits that it did not have the authority to terminate her placement with the respondent, which was a decision made solely by the respondent.[5] Accordingly, Ms Ahmad Subki contends that the respondent was a “joint employer for the purposes of this application.”[6]
Consideration
As earlier stated, Ms Ahmad Subki entered into a casual employment contract with ProQuest on 12 January 2023. I accept, on the evidence, that this contract defines ProQuest as Ms Ahmad Subki’s “Employer” and relevantly provides:[7]
(a)by way of Background: “The Employer offers specialist labour hire and professional placement services. In its labour hire businesses, the Employer employs casual employees for on-hire to its clients (Client) to fill such work assignments (Assignment) as its Clients require from time to time according to their operational requirements. At all times when an employee is on Assignment with a Client, the Employee is and remains an employee of the Employer and not the Client although employees will usually be given day to day instructions about the performance of work by the Client”;
(b)at clause 2: “Whilst on Assignment, my Employer is as stated above as the Employer”; and
(c)at clause 4.2: “When on an Assignment, the Employer will employ me in the position and with the duties, times and start date specified in my Assignment details (verbal or written) in accordance with the directions.”
The documentary evidence before the Commission also relevantly comprises of the Terms and Conditions of Business between ProQuest and the respondent,[8] a tax invoice between ProQuest and the respondent in respect of Ms Ahmad Subki,[9] and copies of Ms Ahmad Subki’s payslips.[10]
In summary, the Terms and Conditions of Business between ProQuest and the respondent relevantly state that ProQuest will provide placement services to the client (defined as Stanley Black & Decker Australia Pty Ltd) in return for the payment of ProQuest’s fees. The terms provide that ProQuest will be responsible for all amounts payable to ProQuest’s workers in relation to an on-hire placement, with such workers working under the client’s control, supervision and direction. Further, the terms identify that the client may elect to end an assignment at its discretion. Consistent with these terms, the tax invoice between ProQuest and the respondent contains a fee for the placement of Ms Ahmad Subki by ProQuest with the respondent.
The payslips relevantly contain Ms Ahmad Subki’s ProQuest employee ID and refer to employment by ProQuest on a casual basis in the position of Grade 1.
The documentary material clearly demonstrates that Ms Ahmad Subki was employed by ProQuest on a casual basis pursuant to a written contract of employment. This is a contract that has not been terminated, and the evidence of ProQuest’s Business Manager is that ProQuest has been actively seeking to find Ms Ahmad Subki work.[11] Ms Ahmad Subki accepts that she was an employee of ProQuest.[12]
I am satisfied that ProQuest had (and maintains) a labour hire arrangement with the respondent whereby it provides labour to the respondent in exchange for a fee. I find that Ms Ahmad Subki’s labour was provided by ProQuest to the respondent under this arrangement. Accordingly, while Ms Ahmad Subki worked at the respondent’s warehouse, she was “on Assignment” and continued to be casually employed, and paid, by her employer ProQuest, as the payslips demonstrate.
By sections 12 and 386(1) of the Act, a “dismissal” is defined by reference to employment. I am satisfied that there was no employment relationship between Ms Ahmad Subki and the respondent, there being no evidence to establish an employment relationship between them. I find that at all material times, Ms Ahmad Subki was on a temporary assignment to the respondent in the manner contemplated in Ms Ahmad Subki’s employment contract with her employer, ProQuest. The respondent’s election to end Ms Subki’s assignment was not an act of dismissal by it, because the respondent was not Ms Ahmad Subki’s employer. In these circumstances, I am satisfied that the respondent did not (and could not) dismiss Ms Ahmad Subki within the meaning of s 386(1) of the Act, or at all.
Ms Ahmad Subki’s contention that she was jointly employed by both respondents is rejected. The Full Bench of the Commission in FP Group Pty Ltd v Tooheys Pty Ltd[13] declined to find that jurisdiction exists for the Commission to hear a claim of joint employment in circumstances where there is no firm adoption of that concept in Australian law by the courts. In circumstances where there can only be one employer, I am satisfied that Ms Ahmad’s employer at all material times was ProQuest.
Conclusion
I find that Ms Ahmad Subki has not been dismissed by the respondent within the meaning of s 386(1) of the Act. Consequently, the respondent’s jurisdictional objection is upheld.
The effect of this finding is that Ms Ahmad Subki’s application for an unfair dismissal remedy cannot proceed in the Commission. Accordingly, the Commission does not have any power to consider and determine Ms Ahmad Subki’s contention that her assignment with the respondent ended without cause, in an unfair or biased manner, or without procedural fairness.[14]
Order and disposition
Ms Ahmad Subki’s application for an unfair dismissal remedy is dismissed.
DEPUTY PRESIDENT
Appearances:
R Ahmad Subki with Harits Albakri Megat, for the applicant.
A Denton of Counsel, for the respondent.
Hearing details:
2024.
Melbourne:
August 22.
[1] Exhibit 2
[2] Exhibit 1 (Digital Court Book (DCB)) 41 at [2]
[3] DCB 42 at [8]
[4] DCB 23
[5] DCB 24
[6] DCB 23
[7] DCB 41-42 at [5], DCB 43-48
[8] DCB 49-52
[9] DCB 55-56
[10] DCB 53-54, DCB 63-128
[11] DCB 35; Exhibit 2
[12] Exhibit 3
[13] [2013] FWCFB 9605; 238 IR 239 at [41]-[44]
[14] DCB 7-8 at [3.2], DCB 11-13, DCB 15-18, DCB 21-22, Exhibit 3
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