Ryan Gavin v Jugiter Pty Ltd T/A Torque Recruitment Group
[2017] FWC 5012
•2 October 2017
| [2017] FWC 5012 |
| FAIR WORK COMMISSION |
| EX-TEMPORE DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Ryan Gavin
v
Jugiter Pty Ltd T/A Torque Recruitment Group
(U2017/6020)
| DEPUTY PRESIDENT BULL | PERTH, 2 OCTOBER 2017 |
Application for an unfair dismissal remedy. Casual employee. No termination of employment at the employer’s initiative, application dismissed.
This matter was heard in Perth on 20 September 2017. At the conclusion of the proceedings, the matter was adjourned and the parties were advised that the Commission would hand down its decision on transcript the following day. This is the published version of the decision handed down in transcript on 21 September 2017, edited for style and clarity.[1]
Mr Ryan Gavin (Mr Gavin / the applicant) alleges that he was unfairly dismissed by his employer, Jugiter Pty Ltd, which trades as the Torque Recruitment Group (the respondent).
Mr Gavin was engaged as a casual employee with the respondent and states in his evidence that on 18 May 2017, the respondent’s Business Development Manager, Ms Kim Wearne, dismissed him over the telephone in saying - and quoting from the applicant's outline of submissions under the heading question 5(d): "I am not giving you anymore."
Mr Gavin represented himself and called no witnesses in support of his application.
The respondent sought leave to be represented by Mr Alistair Talbert, a solicitor, on the basis that representation would assist the Commission in arguing two jurisdictional objections, the first being that the respondent alleges there had been no dismissal and therefore the claim cannot proceed and secondly, that the applicant was not a regular and systematic casual employee and therefore had not completed a six-month period of regular and systematic work with a reasonable expectation of continuing employment.
No objection was taken by Mr Gavin to Mr Talbert's application and under s.596(2)(a) of the Fair Work Act 2009 (FW Act) the Commission concluded that the jurisdictional issues would be dealt with more efficiently if advocated by Mr Talbert.
The respondent relied on three witnesses in their jurisdictional argument:
· Mr Matthew Isles, the WA Manager of the respondent;
· Ms Paula Anderson, the Site Supervisor of Brajkovich Demolition and Salvage WA Pty Ltd; and
· Ms Kym Wearne, a Business Development Manager of the respondent.
The respondent is a labour hire company that places employees with host employers. The applicant was listed on the respondent's database as an unskilled labourer or trades assistant since April 2014. On 18 May the applicant was working with Brajkovich Demolition and Salvage and had been placed there by Ms Wearne the day before, 17 May 2017.
On 18 May 2017, Mr Gavin left site at around 10:00am, (having been at the site since the previous day), after determining that it was unsafe to remain on site due to alleged asbestos exposure, which he says resulted from the digging up of asbestos pipes at the Brajkovich site located at the Canning Aquatic Centre, 42 Queens Street, Bentley.
Mr Gavin did not notify his host client, Brajkovich, namely its supervision, that he was leaving site, nor did he notify his employer, the respondent. As stated earlier, the applicant had worked the previous day and on that day had declined the client's request to work additional hours, stating, as set out in the evidence given by Ms Anderson, that he ‘worked to live, not lived to work’.
Mr Gavin's submissions and evidence were that the Bentley work site was unsafe due to asbestos on site and that he shouldn't have to, in his own words, "breathe asbestos when at work". This appeared to be an issue that Mr Gavin had with other worksites, and other clients.
The first jurisdictional point raised by the respondent is that the applicant was not dismissed. As pointed out by the respondent, s.385 of the FW Act states that a person can only be dismissed unfairly where, firstly, they have actually been dismissed and secondly, the dismissal was harsh, unjust or unreasonable.
Under s.386 of the Act, the definition of, "dismissal," is described as:
A person's employment is terminated on the employer's initiative.
Ms Wearne gave evidence that as a Business Development Manager, she looked after clients in the mining, construction and civil construction industries and had a team of recruiters to source labour for her. Ms Wearne stated that she rarely has any relationship with her candidates, that is, the employees they source and provide to clients, but felt sorry for the applicant and made an extra effort to find him work. She stated that she had difficult placing the applicant with her clients as at least five clients would not accept him due to conduct issues, which included leaving site early without notification to the appropriate management or disagreeing with supervision of a client. These clients included Badenport, Palazzo Homes, WA Earth Moving and more recently, Brajkovich Demolition.
Ms Wearne stated that on 18 May 2017, she was advised that the applicant had left the Bentley site of its client, Brajkovich, at around 10:00am without the appropriate notification.
Ms Wearne stated that she contacted the applicant by telephone and he stated that he had an issue with the excavator working safely on site. Ms Wearne was adamant that asbestos was not mentioned by the applicant, although the applicant contests this point, stating that he did raise the issue of asbestos. Ms Wearne stated that she reminded the applicant that he cannot leave site without notifying the supervision of the client or the respondent as this is clearly a safety issue as employers need to be able to account for the whereabouts of their employees during working hours.
She then stated that she advised the applicant that due to his conduct he had made it extremely difficult for her to find clients who would accept him for future work. This was further compounded as under her work allocation she had very few clients who wanted unskilled labour. Due to the lack of clients, Ms Wearne said to the applicant that she cannot help him anymore.
Ms Wearne was adamant that she never advised the applicant that he was terminated, that he remained on the respondent's database and that it may have been possible for other Business Development Managers, of whom there were three in total, to find or source the applicant further work.
She states that at no stage was the applicant told that he was terminated. She also advised that she was unaware that there was any asbestos on the site when Mr Gavin was sent to the site. He was untrained in the removal of asbestos and would not have been sent to a site to perform this work. Her understanding was that he was sent to the site at the client's request to undertake the removal and stacking of paving bricks. He had not been trained in respect to asbestos removal.
Ms Wearne stated that on 23 May 2017, she spoke to an administrator from Brajkovich who said that in respect to the events of 18 May 2017, that the applicant had a disagreement with Ms Paula Anderson, the Site Supervisor, that he had taken a photo of the worksite and then left. She was further advised by the administrator that Worksafe had visited the site and not raised any issues concerning the removal of asbestos.
Ms Wearne stated that on 25 May 2017, she received a further request from Brajkovich Demolition for unskilled labour. Ms Wearne proposed that the applicant be put forward as a candidate, which she states was agreed to by the administrator. It was understood that he would then be engaged by Brajkovich again. However, a further phone call was then received from Brajkovich, stating that following discussions on site with supervisors, it was deemed that the applicant was no longer acceptable to Brajkovich due to his poor attitude.
The attempted sourcing of work for the applicant on 25 May is not indicative or consistent with the applicant having been terminated on 18 May. Ms Wearne was consistent in her evidence that she never advised the applicant he had been terminated and had simply told the applicant that it would be difficult to source work for him in the future as there were limited clients that she could find that would accept him following earlier complaints or issues. In the applicant's evidence he disputed this, asserting that at least one client, WA Earth Moving, was still keen to engage him, however, he was unable to produce any evidence to confirm this.
Ms Wearne's evidence was that, following the events of 18 May, she continued to attempt to source work for the applicant which she understood had been achieved with Brajkovich on 25 May. However, as mentioned previously, following a phone conversation the agreement to employ the applicant was rescinded by the client, based on concerns held by the client's supervision.
It may be understandable that following the applicant's phone conversation on 18 May with Ms Wearne that he thought that his employment with the respondent had come to an end. However, if so, he was under a misunderstanding.
I accept the evidence of Ms Wearne that she did not advise the applicant that he had been dismissed. There was no dismissal at the initiative of the employer; he remained on the database of the employer as a casual and the employer continued to seek work for the applicant.
On a momentary basis at least, the respondent found work for the applicant on 25 May 2017, although this was later rescinded by the client. The applicant was simply told by Ms Wearne on 18 May 2017 that she couldn't help him anymore as her clients had advised her that they were no longer willing to accept him on their sites. Because of this, there were going to be very few opportunities for her to source work for him.
Ms Wearne advised that while remaining on the database there was no record, as would otherwise have occurred, that indicated that the applicant was not suitable for future employment. This evidence is fortified by the actions of Ms Wearne on 25 May in putting forward the applicant for further work and initially securing that work with Brajkovich. On this basis I do not find that there was a termination of employment on the employer’s initiative. The applicant was told by Ms Wearne that due to his history and with the reduction of available clients, it would be difficult for her to source future work. However, he was never advised he was terminated nor was he terminated. There was simply a lack of work opportunities; though the respondent considered he remained available for suitable work placement should it eventuate.
On 18 May, the applicant left the worksite that he was allocated to of his own volition. He was not asked to leave the site but decided, for his own reasons, that the site was not safe. He did not contact his employer or the client's supervision and it remained up to the employer to contact Mr Gavin to understand what had actually occurred.
I place little if any weight on the respondent’s offers of employment to the applicant since the applicant has filed his unfair dismissal application. The applicant indicates that he refused to accept the further offers of work on the basis that he was advised that in doing so he would not be able to continue his unfair dismissal claim and further, that the work offered was fewer hours than he had previously been offered.
Mr Gavin has an obligation to mitigate his loss, but I do not find that the offers of work since the unfair dismissal application was filed, or his lack of accepting that work, have any real bearing on what occurred on 18 May 2017. Whether Ms Gavin was justified in not accepting the further work offers after he had filed his unfair dismissal claim does not alter my conclusion that there was no termination of employment.
In respect to the second jurisdictional point, s.382 of the FW Act provides that an employee is protected from unfair dismissal if they have completed a period of employment of at least the minimum period.
In this case, as the respondent is not a small business, the minimum period is a period of six months. A period of service as a casual does not count towards the minimum period where they have not worked on a regular and systematic basis and did not have a reasonable expectation of continuing employment. The respondent points to the contract of employment to demonstrate that it has no obligation to provide ongoing casual work. This, in my experience, is a common term found in casual employee contracts and I prefer to rely on the actual working pattern of the applicant to determine this question. The respondent argues that the work that was provided was not regular or systematic. It appears to be accepted that the applicant commenced in June 2014. The respondent states that he had completed 40 assignments with 19 different host employers ranging from one day to 12 weeks.[2]
Having examined the work history of the applicant, which is contained at JT0 of the respondent's outline of submissions (Exhibit R1), I am satisfied that the applicant has served at least six months on a regular and systematic basis, with a reasonable expectation of ongoing employment. From July 2014 to July 2015 the applicant worked for the respondent with only limited periods without work, ranging from one day to 17 days, with most breaks being one to four days. Further, between April 2015 and December 2015 the applicant worked for a continuous period of 263 days. On this basis the jurisdictional argument is not made out.
The applicant has served the minimum period of six months' regular and systematic work with an expectation of continuing work, although it is noted that between 27 October 2016 and 1 March 2017 the applicant did not work for the respondent and was, in his evidence, working elsewhere with at least two employers which included a tree and stump removal business run by his brother. On his evidence he worked for at least 20 hours a week during this period.
The evidence was that during this period, some work was allocated to the applicant but there was no response from the applicant and that is found at Exhibit R9. The applicant's own evidence, and in cross-examination, was that he did not contact his employer at all during November and December 2016, which would indicate there was no reasonable expectation of continuing work. If it was necessary I would extract this period of employment in calculating the six-month period, as it was not regular and systematic.
Much of the evidence in this matter related to whether the applicant was required to work on sites which were contaminated by asbestos. This, in the applicant's evidence, justified his leaving various sites, including the site of Brajkovich in Bentley on 18 May 2017.
The applicant may have had a genuine belief regarding his asbestos concerns. Whether it was a reasonably-held belief is a question I need not determine. Both parties have differing views on this issue, including Ms Anderson from Brajkovich. The evidence fell short of demonstrating an actual risk of serious or imminent harm resulting from asbestos on site. However, for the reasons previously given, the Commission is unable to determine the applicant's claim on the basis that there has been no dismissal of employment within the meaning of the FW Act.
The application is dismissed for want of jurisdiction.
DEPUTY PRESIDENT
Appearances:
Applicant: Mr Ryan Gavin on his own behalf
Respondent: Mr Alistair Talbert, Solicitor, Sparke Helmore Lawyers
Hearing details:
2017
Perth
20, 21 September
[1]See extra curial publication (1997) 9 Judicial Officers’ Bulletin Gleeson CJ at 25
[2] The witness statement of Ms Wearne at Exhibit R4 at [4] that the applicant had completed 30 assignments, but this is not material to the decision.
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