Sebastian Castillo Pino v Clifford Hallam Healthcare Pty Ltd T/A CH2

[2020] FWC 4107

[2020] FWC 4107

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.526—Stand down

Sebastian Castillo Pino
v
Clifford Hallam Healthcare Pty Ltd T/A CH2
(C2020/4977)

COMMISSIONER YILMAZ MELBOURNE, 6 AUGUST 2020

Application to deal with a dispute involving stand down - jurisdiction – whether employee includes former employee.

[1] A Form F13 – Application for the Commission to deal with a stand down dispute, pursuant to s.526 of the Fair Work Act 2009 (the Act) was lodged on 26 June 2020, by Mr Sebastian Castillo Pino against Clifford Hallam Healthcare Pty Ltd trading as CH2 (CH2). The application was listed for conference on 30 June 2020.

[2] The application was not resolved at conference, and the matter of whether the application was properly before the Commission was raised, as Mr Castillo Pino was not an employee at the time that he filed the application. Mr Castillo Pino pressed that the jurisdictional question of whether Mr Castillo Pino is an employee for s. 526 of the Act be determined.

[3] I issued directions for the filing of submissions. The parties agreed that I determine the matter on the papers.

[4] Mr Castillo Pino was represented by Mr Liam O’Brien.

Background

[5] CH2 is a primary care supplier of pharmaceutical, healthcare and veterinary consumables. The business services the healthcare market across hospitals, community pharmacy, primary care, veterinarian services, aged and community care.

[6] Mr Castillo Pino was emailed an employment offer on 12 March 2020 to commence as a marketing co-ordinator on 30 March 2020. 1 On 13 March 2020, Mr Castillo Pino signed the offer of employment and communicated his acceptance to CH2 on the same day.

[7] On 24 March 2020, CH2 emailed after not reaching Mr Castillo Pino by telephone, the following advice:

“Whilst we would love to have had you start on the 30th due to the unprecedented nature of corona virus and social distancing restrictions getting tougher we have reduced staff in the office and are not currently working on marketing activities.

Unfortunately it’s unlikely at this stage we will be able to have you start before May but will keep you updated.

I apologise for any inconvenience caused.” 2

[8] This correspondence was signed off by the Marketing Manager, Mr Castillo Pino’s direct manager. The correspondence confirms that Mr Castillo Pino was employed, but his commencement date in the workplace was delayed until May 2020, due to the impact of the COVID-19 pandemic.

[9] On 25 May 2020, CH2 advised Mr Castillo Pino that his position was made redundant. The Termination Payment Statement shows the hire date as 30 March 2020 and termination date as 25 May 2020, the reason for termination being redundancy and Mr Castillo Pino was paid his accrued annual leave, a public holiday and one week’s notice. 3

[10] It is not contested that Mr Castillo Pino contacted CH2 after his termination of employment, requesting reconsideration of the decision and offered to perform any tasks within the business. CH2 considered the request, but as no alternative work was available, the decision of redundancy stood and this was communicated to him.

[11] On 15 June 2020, after termination of employment, Mr Castillo Pino requested payment for his 8 weeks’ of employment.

[12] On 15 June 2020, CH2 responded that on two previous occasions it confirmed to Mr Castillo Pino that the delay in commencing work was due to the suspension of marketing work because of the impact of COVID-19. It confirmed its position that the stand down was legitimate as it could not be held responsible for the stoppage of work caused by the virus. 4

Applicant’s submissions

[13] Mr Castillo Pino submits that he was an employee for the purposes of s.526 of the Act because:

•  He was an employee at the time he was purportedly stood down;

•  He was never informed that he was stood down until after his role was made redundant; and

•  Under s.526(4), “In dealing with the dispute, the FWC must take into account fairness between the parties concerned”. To construe the Act in a way to block the applicant from making an application would result in the Applicant having to pursue a breach of contract application before VCAT, when applications concerning employment law are typically heard by the Commission. 5

[14] Mr Castillo Pino also refers to the Fair Work Ombudsman website which describes the proper process for stand down, and submits the alleged stand down only became known to him after his termination of employment and the “process” of stand down was not in accordance with the FWO advice. 6

[15] It is further submitted that Mr Castillo Pino is a recent immigrant to Australia with limited English and limited understanding of employment law. Mr Castillo Pino contends that to deny adjudication of his dispute contradicts the requirement that the Commission take into account the fairness between the parties under s.526 (4) and is inconsistent with the objects of the Act. 7

[16] Mr Castillo Pino does not rely on any authorities in his submission.

Respondent’s submissions

[17] CH2 submit that Mr Castillo Pino was made redundant on 25 May 2020. The application for the stand down dispute was made on 26 June 2020. At the time of application, Mr Castillo Pino was not an employee of CH2.

[18] CH2 relies on the wording in s.526 (3) (a) of the Act which states “the FWC may deal with the dispute only on application by any of the following: (a) an employee who has been, or is going to be, stood down under subsection 524(1)”. 8

[19] CH2 contends that given Mr Castillo Pino was not an employee at the time the application was made, the application is not valid. 9

[20] CH2 relies on a matter which was before Deputy President Clancy, which it submits related to the same technical difficulty. 10

[21] CH2 submits Mr Castillo Pino’s commencement was postponed due to lack of work and he had plenty of time to make an application before his termination of employment due to redundancy. 11

[22] CH2 challenge the submissions of the Applicant that he was disadvantaged because he was a recent immigrant with limited English and had a limited understanding of Australian employment law. It submits he came to Australia in 2014 and has a proficient command of the English language, and that it is evidenced by his own statements on his LinkedIn profile. It is also submitted that lack of awareness of Australian employment law is no different from the majority of the Australian workforce. Further, it submits Mr Castillo Pino is at an advantage because of his relationship with Mr O’Brien who is experienced in law. 12

The legislation

[23] The relevant provisions of the Act are:

‘526 FWC may deal with a dispute about the operation of this Part

(1) The FWC may deal with a dispute about the operation of this Part.

(2) The FWC may deal with the dispute by arbitration.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(3) The FWC may deal with the dispute only on application by any of the following:

(a) an employee who has been, or is going to be, stood down under subsection 524(1) (or purportedly under subsection 524(1));

(b) an employee in relation to whom the following requirements are satisfied:

(i) the employee has made a request to take leave to avoid being stood down under subsection 524(1) (or purportedly under subsection 524(1));

(ii) the employee‘s employer has authorised the leave;

(c) an employee organisation that is entitled to represent the industrial interests of an employee referred to in paragraph (a) or (b);

(d) an inspector.

(4) In dealing with the dispute, the FWC must take into account fairness between the parties concerned.

Consideration

[24] This dispute concerns the operation of s.526 of the Act in relation to a stand down immediately at the time of Mr Castillo Pino’s employment with CH2 until his redundancy. CH2 submit Mr Castillo Pino was stood down due to the COVID-19 pandemic for the period from his expected commencement date until his redundancy, a period of 8 weeks. It is contended that the “stand down” by CH2 was not in accordance of the Act because CH2 was not affected by a stoppage of work. Further, if there was a stoppage of work in some areas of the business, it is contended that CH2 had an obligation before the stand down to establish that Mr Castillo Pino could not be usefully employed.

[25] Before consideration of the dispute, the jurisdiction of the application was raised because Mr Castillo Pino lodged the dispute after his employment was terminated.

[26] The Respondent’s reliance on the process taken by Deputy President Clancy in a private conference was of no assistance in determination of this matter.

[27] The Applicant’s submission that jurisdiction must be found in his favour and his reliance on concepts of fairness and a view of purpose of the provisions, is misguided. The relevant part of the Act concerns disputes about its operation, and a dispute can only be dealt with where the application meets the jurisdictional requirements of s.526 (3).

[28] Section 526 permits an application to be made by an employee, an employee organisation entitled to represent the employee or inspector. Mr Castillo Pino made the application as he was an employee of CH2 at the time he was stood down.

[29] For the purposes of this dispute, section 526 of the Act empowers the Commission to deal with a dispute only on application by an employee who has been, or is going to be, stood down under subsection 524(1).

[30] Therefore, the question is whether the reference to employee in section 526 (3)(a) captures an ex-employee.

[31] Ordinarily an employee will have its ordinary meaning unless provisions of the Act specify otherwise. 13 Part 3-5 - Stand down provides for a national system employer to stand down a national system employee in certain circumstances. Meaning of employer and employee is defined for the purposes of Part 3-5 in ss.13 and 14 of the Act; an employee in respect to stand down is a national system employee. Where individuals other than national system employees are afforded protections in the Act, the relevant section provides a definition and may also use relevant language such as worker or person.14

[32] Section 13 defines an employee as an “individual so far as he or she is employed, or usually employed, as described in the definition of national system employer in section 14…” In this matter, CH2 is captured by s.14. Based on this definition and for the purposes of this matter, an employee is one that is employed.

[33] Further, the question whether Mr Castillo Pino is captured as an employee for the purposes of this part, requires the consideration of the language as a whole in s.526 of the Act.

[34] Commissioner Johns considered this same issue in Timothy Schell, Chris Cootes, Nathan Wollman and Tye Jakubowski v Ensign Australia Pty Ltd. 15 Commissioner Johns took guidance from the Fair Work Bill 2009 Explanatory Memorandum and the construction of section 526 and reasoned:

“[22] When considered in context and having regard to the purpose of investing the Commission with a dispute settling power, the better interpretation is that, at the time the application is made to the Commission, there must be an existing employment relationship……. At common law the employee would be entitled to be paid, however s.524(3) of the FW Act relieves the employer of that common law obligation.” 16

[35] Further Commissioner Johns found that the interpretation was assisted by the phrase “who has been, or is going to be, stood down”. 17 I adopt the reasoning of Commissioner Johns in that decision. It therefore follows, that the expression in s.526(3) concerns an employee that has been stood down or is about to be stood down.

[36] Accordingly, s.526 (3)(a) limits the jurisdiction to an “employee” that “has been, or is going to be” stood down. When Mr Castillo Pino filed his dispute seeking relief from the stand down provisions of the Act, he was not an employee, nor was he stood down or about to be stood down.

[37] The object of the dispute settling power is limited to employees that have been or are going to be stood down. The Commission can deal with a dispute once the employer has stood down or taken action to commence a stand down. In this matter, there is no actual or planned stand down in place at the time the dispute was lodged.

[38] The proper construction of s.526(3) for the above reasons results in a lack of jurisdiction for Mr Castillo Pino’s application. Therefore, the application is dismissed.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

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 1   Attachment to Applicant’s Form F13.

 2   Ibid.

 3   Ibid.

 4   Ibid.

 5   Applicant’s submissions at paragraph 2.

 6   Ibid at paragraph 4.

 7   Ibid at paragraph 5.

 8   Respondent’s submissions at paragraphs 2-3.

 9   Ibid at paragraph 3.

 10   Ibid at paragraph 4 and C2020/5053.

 11   Ibid at paragraph 5.

 12   Ibid at paragraphs 6-7.

 13 See s.12 of the Fair Work Act 2009 (Cth)

 14 See ss. 365, 372, 382 and Part 6-4B of the Fair Work Act 2009 (Cth).

 15   [2015] FWC 8825.

 16   Ibid at paragraph 22.

 17   Ibid at paragraph 23.