DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Sharon O’Grady
v
WorkPac Pty Ltd
(U2019/10172)

DEPUTY PRESIDENT LAKE

BRISBANE, 6 JANUARY 2020

Application for an unfair dismissal remedy – Jurisdiction – whether termination of employment upon cessation of assignment – Jurisdictional objection – Jurisdictional objection upheld – Application dismissed.

[1] This decision concerns an application for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (the Act) by Ms Sharon O’Grady (the Applicant). WorkPac Pty Ltd (the Respondent) has raised a jurisdictional objection to the Applicant’s application proceeding on the basis that the Applicant has not been dismissed within the meaning of s 386 of the Act.

[2] The jurisdictional objection arises because – it is claimed by the Respondent – that the Applicant has not been dismissed by the Respondent. Following this claim, the Respondent seeks I exercise my discretion under s 587(1)(c) of the Act to dismiss the application, on the basis that there is no reasonable prospect of success.

BACKGROUND

[3] The Applicant was employed on 10 April 2015 as a casual employee. The Applicant was assigned to a client of the Respondent, Anglo Coal (Capcoal Management) Pty Ltd (Anglo) at their Grasstree Mine site and commenced work there on 21 April 2015. The Applicant became unwell on 13 June 2019, provided a medical certificate, and was unfit for work. The Applicant remains unfit for work as at the date of this decision.

[4] On or about 15 August 2019, Anglo informed the Respondent of reduced manning requirements, meaning the role of the Applicant was no longer required. The Respondent attempted to inform the Applicant of this on several occasions on 19 and 20 August 2019. Unable to contact the Applicant by telephone, the Respondent sent correspondence to the Applicant on 20 August 2019 which stated:

“… at such time as you can provide a clearance confirming that you are fit to return to work, WorkPac will work with you to source an alternative assignment.”

JURISDICTIONAL OBJECTION

[5] Section 386 of the Act relevantly provides:

“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.”

[6] The Respondent draws a distinction between the termination of assignment to the Anglo site and termination of the Applicant’s employment. It is clear on a reading of s 386 that a mere termination of assignment would not fall within the ambit of s 386.

[7] Given the correspondence of the Respondent on 20 August 2019, it is clear that there is an ongoing relationship between the parties. There was no formal termination and there exists a promise of cooperation to find…

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: [2020] FWC 66
Decision Date: 6 JANUARY 2020

CaseChat Overview and Summary

Sharon O'Grady lodged an application for unfair dismissal remedy against WorkPac Pty Ltd. The dispute arose from the cessation of her employment following the conclusion of an assignment. The Federal Circuit and Family Court of Australia was tasked with determining the validity of the dismissal and whether the court had jurisdiction to hear the matter. The primary legal issue before the court was whether the termination of employment was valid and if the court had the authority to hear the claim, particularly given that the employment was tied to a specific assignment.

The court considered whether the employment arrangement was a contract of employment or a contract for services. This distinction is crucial because it determines the jurisdiction of the court and the applicable laws. If the arrangement was a contract for services, the court would not have jurisdiction to hear the unfair dismissal claim. The court found that the employment was tied to a specific assignment and did not constitute a contract of employment. Consequently, the court held that it did not have jurisdiction to hear the unfair dismissal claim.

Given that the court determined it did not have jurisdiction, the application for an unfair dismissal remedy was dismissed. The court concluded that the termination of employment was not subject to the unfair dismissal provisions of the Fair Work Act 2009. The decision highlights the importance of correctly characterising the nature of the employment arrangement and its implications for jurisdictional issues.

Orders