Shane Organ v Boom Logistics Limited - [2022] FWC 2007

[2022] FWC 2007

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Shane Organ
v

Boom Logistics Limited

(U2022/4202)

DEPUTY PRESIDENT BEAUMONT

PERTH, 5 AUGUST 2022

Application for an unfair dismissal remedy - jurisdictional objections - identification of employer – minimum employment period - labour hire arrangement - joint employment - consideration of Chambers; Brien v Broadway Homes Pty Ltd t/a Broadway Homes

On 10 April 2022, Mr Shane Organ (the Applicant) lodged an application for an unfair dismissal remedy having been dismissed. Boom Logistics Limited (the Respondent/Boom) objected to the application on the basis that it was not the Applicant’s employer and even if it was, the Applicant was not protected from unfair dismissal because he had not satisfied the minimum employment period.

Turning to the first objection, the Applicant asserts that while his employment contract makes reference to his employer being Shutdown Staffing Pty Ltd T/A readi (readi), at law the Respondent was his employer. The Applicant further submits that the Respondent has been his employer since 2019.

Section 396 of the Fair Work Act 2009 (Cth) (the Act) provides that the Commission must decide four preliminary matters before considering the merits of an unfair dismissal application. One of those matters, is whether the person was protected from unfair dismissal.

For the reasons that follow, I have dismissed the Applicant’s unfair dismissal application, having found that the Applicant had not satisfied the minimum employment period with his employer, readi. Accordingly, an Order[1] to that effect is issued in conjunction with this decision.

Background

Having not filed a witness statement but with assistance from myself, the Applicant gave oral evidence and was cross examined on his evidence. Notwithstanding the jurisdictional objections raised by the Respondent, the Respondent initially sought to tender into evidence one document and called no witnesses. Both Applicant and Respondent made oral submissions in support of their written materials.

The Applicant gave evidence that he started work with Boom in March 2019 at the Roxby Downs site on an initial shut down. In his own words, the Applicant explained that he was actually quite a green rigger at that time and therefore for a period after that work, he was just finding his feet in the industry.

The Applicant said that in March 2021, he commenced working for Boom at the Boddington mine site in Western Australia. Prior to that, the Applicant describes having worked for Boom for a period of one week a month continuously for approximately 18 months to two years.

Having started at the Boddington site, the Applicant describes working on average somewhere between 48 to 60 hours a week, but quite regularly working up to 84 hours a week.

The Applicant provided a printout of timecards with a date range of 1 February 2019 until 1 April 2022. Those timecards showed that during the period of 25 February 2019 until 20 September 2020 he was assigned to the ‘Organisation’ Boom Logistics SA – Olympic Dam.[2] In…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] FWC 2007
Decision Date: 5 AUGUST 2022

CaseChat Overview and Summary

Shane Organ lodged an unfair dismissal application against Boom Logistics Limited (Boom) and Shutdown Staffing Pty Ltd T/A readi (readi). The Respondent objected to the application on the basis that it was not the Applicant’s employer and even if it was, the Applicant was not protected from unfair dismissal because he had not satisfied the minimum employment period. The Applicant asserted that he was employed by the Respondent, notwithstanding his employment contract made reference to his employer being readi. The Applicant further submitted that the Respondent had been his employer since 2019. The Applicant argued that readi was a wholly owned subsidiary of the Respondent, and that he had been employed by readi. The Respondent submitted that it had engaged its fully owned subsidiary to provide labour hire workers at various locations including the mining site at Boddington. The Respondent submitted that the Applicant had filed material that appeared to contain examples of the relationship between the Respondent and readi and how certain resources were shared between the two entities. The Respondent submitted that the point was uncontroversial and that it and readi shared certain resources. The Applicant gave evidence that he had worked for the Respondent for a period of three years and that he did not feel he was still on probation after three years of employment. The Applicant submitted that he had been employed by readi, however, the LOO expressly provided that the employment relationship is and remains between the parties to this agreement and no employment relationship exists, or shall be created, between the Applicant and any client. The Deputy President found that the Applicant was employed by readi, and that readi was the Applicant’s employer. The Deputy President found that the Applicant had not satisfied the minimum employment period and dismissed the Applicant’s unfair dismissal application.

Orders