Shawn Fullerton v Programmed Skilled Workforce Limited

[2018] FWC 4349

[2018] FWC 4349

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shawn Fullerton
v
Programmed Skilled Workforce Limited
(U2018/2950)

COMMISSIONER HARPER-GREENWELL MELBOURNE, 25 JULY 2018

Application for an unfair dismissal remedy.

[1] This decision is about the circumstances of a casual employment engagement between Mr Shawn Fullerton (the Applicant), the labour hire company Programmed Skilled Workforce Limited (Programmed) and the host company Lindemans Karadoc (Lindemans).

[2] It is common ground that on 30 March 2017 Mr Fullerton was registered and inducted for casual employment with Programmed. Mr Fullerton was offered casual employment and provided with an electronic copy of a Casual Employee Contract 1. Mr Fullerton accepted the terms and conditions in the Contract prior to commencing an assignment with the host company Lindemans on 3 April 2017.

[3] On 28 February 2018 Mr Fullerton was notified by Programmed that Lindemans no longer required his services on site. Mr Fullerton was aggrieved by the decision and the lack of explanation provided by Lindemans for the decision and lodged his application for unfair dismissal remedy on 21 March 2018.

[4] Programmed objected to the application on the basis that the Commission has no jurisdiction to hear the substantive application because Mr Fullerton had not been dismissed by Programmed. 2

[5] Mr Fullerton’s application was made within the time limit prescribed by s.394(2) of the Act. An attempt was made to resolve the matter at conciliation however the matter did not resolve and proceeded to be heard by way of determinative conference in Mildura on 17 July 2018.

Legislation

[6] An employee can only be found to have been unfairly dismissed if the employee has been dismissed from his or her employment. This requirement is set out at s.385 of the Act, which provides as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[7] The meaning of the term “dismissed” is set out at s.386 of the Act, which provides as follows:

“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.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”

Consideration of the evidence

[8] There was no dispute between the parties that Mr Fullerton was performing duties with Lindemans as part of a labour hire arrangement and there was little competing evidence between the parties as to the cessation of Mr Fullerton’s assignment with Lindemans or how that assignment was concluded.

[9] Mr Fullerton gave evidence that he was in fact employed by Programmed under a contract that included the following terms;

“You will be recorded as being available to accept offers of casual employment from any entity within the Programmed Group of companies. Being recorded as being available as a casual employee does not guarantee work, and you acknowledge that;

(a) Any work offered will be in accordance with Programmed’s needs. Programmed may change the quantity and arrangement of any work offered to you as necessary;

(b) There is no obligation on Programmed to offer or on you to accept, any assignment. Each offer and acceptance will constitute a distinct contract of employment, on the terms set out in this agreement, which is separate from any subsequent or prior contract of employment; and

(c) You do not have any entitlement to ongoing employment given the casual nature of your engagement.” 3

[10] On 3 April 2017, Mr Fullerton was assigned by Programmed to Lindemans as a Security Officer. 4 In addition to his employment with Lindemans, Mr Fullerton owns and operates a private investigation business.

[11] On 9 February 2018 Mr Fullerton was provided with a direction via email from Lindemans prohibiting him from bringing his personal laptop into the guardhouse whilst he was on duty. Mr Hasan Cam, the Compliance Coordinator at Lindemans, wrote;

“Hi Shawn,

Just about your personal laptop in the guard house, I know you don’t use it unless you needs something, but can I get you to leave your laptop in your car or you can use it on your lunch break in main lunch room.

Unfortunately I have to put stop to this for reasons.” 5

[12] Programmed understood the request was made because they wanted guards to focus on their role and not be distracted by personal items such as laptops.

[13] Mr Fullerton objected to the request and, on 10 February 2018, sent an email in reply to Mr Cam. Mr Fullerton wrote;

“Referring to your email in regards to my ‘Laptop bag’ with my personal items including Lunch and patrol items, etc. My integrity has been questioned which I absolutely appalled with whilst this issue has been bought forward by an anonymous guard for what reasons I am totally perplexed with the sudden email.

All guards bring a bag with there personal items which is described as a ‘Private & Personal possession’.-’This means not for others to explore’

I am wanting a full explanation in regards to this matter, I’m disappointed with the individual who has been childish enough trying to expose myself whilst on the job.

I can assure yourself that my work is professional as per my reports and my patrols reflect whilst rostered at ‘Lindeman’s Karadoc’.

I will be requiring a full investigation into why I have been targeted & who is the so called whistle blower, Please understand that this has not been the first time this has occurred with these type of attacks during my employment at ‘Lindeman’s Karadoc’.

If you are going to be serious about security onsite and what guards bring with them etc. I think is high time that ‘Drug’ & Alcohol testing’ come into play. These are serious breaches of the workplace.

I am rostered on tomorrow 05:45AM - 14:00PM moving forward, I be taking stress leave from ‘Lindemans Karadoc’ from this point onwards, As this current issue is ‘Descimantive’ and described as ‘Workplace bullying’ and for myself to continue under these conditions would be detrimental to myself.”(sic) 6

[14] Mr Fullerton worked his next shift which was on Sunday 11 February 2018 and thereafter he did not return to work stating he was in a distressed state. Mr Fullerton’s evidence was that he did not seek medical advice nor did he provide a medical certificate in support of his claim that he was suffering from a stress related illness.

[15] On 11 February 2018 Ms Georgina Monteleone, Area Manager for Programmed in Mildura, 7 was advised by Lindemans that Mr Fullerton had sent an email making allegations of bullying and harassment.8 Ms Monteleone subsequently met with Mr Fullerton on 13 February 2018 and ascertained that the allegations were in relation to the direction issued by Lindemans that he not to bring his laptop into the guardhouse whilst he was on duty. During the meeting Mr Fullerton explained that he was very upset by what had occurred and he had concerns as to why the direction had been provided. Mr Fullerton also felt that his integrity was being questioned and that Programmed had failed to provide him with adequate reasons as to why the directive had been issued.9

[16] Ms Monteleone explained the direction was about his laptop rather than the bag itself and suggested that he leave his laptop in his car or at home. Ms Monteleone’s oral evidence was that during the meeting Mr Fullerton demanded reasons be provided as to why management at Lindemans had issued the direction. Ms Monteleone gave a commitment to speak to Lindemans in order to obtain more information and try to resolve the issue. At the conclusion of the meeting Mr Fullerton informed Ms Monteleone that he wanted to return to Lindemans however he was not prepared to do so that week. 10

[17] Ms Monteleone followed up on her commitment to Mr Fullerton and on 20 February 2018 called and informed him of Lindemans’ response to her query. She explained that the direction was a general rule that applied to all workers in the guardhouse because Lindemans did not want security guards on duty using personal laptops whilst they are supposed to be monitoring the security of the site, however he was welcome to use his laptop whilst he was on his lunch break. Ms Monteleone informed Mr Fullerton that she had spoken to the Programmed Human Resource team and they had informed her that the direction was not unreasonable. Mr Fullerton was not satisfied with the response and he did not consider the matter to be resolved.  11

[18] Mr Fullerton was of the view that the direction had placed him under undue pressure and felt the explanation provided by Ms Monteleone was insufficient. At the conclusion of the meeting Mr Fullerton informed Ms Monteleone he would not return to work that week. Ms Monteleone’s evidence was that Mr Fullerton had said he was busy. Mr Fullerton did not contest this evidence and submitted he was busy dealing with the distress the direction had caused him.

[19] Later that same day Ms Monteleone sent Mr Fullerton and email confirming their discussion and that the direction was a site wide direction of Lindemans and was not specific to Mr Fullerton. Ms Monteleone requested Mr Fullerton provide her with the details of when he intended to return to work. 12

[20] Mr Fullerton replied on 21 February 2018 stating that he was rostered on to work shifts on the 3 and 4 March 2018. Mr Fullerton requested all copies of correspondence between Ms Monteleone and the Programmed HR team and between Ms Monteleone and Lindemans be sent to him. Ms Monteleone responded on 22 February 2018 informing Mr Fullerton that she had provided him with a response to his concerns and she considered the matter to be closed. 13

[21] On 23 February 2018 Lindemans informed Ms Monteleone that, due to site requirements, they no longer required Mr Fullerton for any further shifts. Ms Monteleone requested Lindemans provide reasons for their decision. Lindemans’ response was that they had made the decision due to site requirements.

[22] Ms Monteleone’s evidence was that, although she did not see this as unusual as Lindemans’ requirements varied frequently due to seasonal demand and operational changes, she emailed them that same day requesting that they reconsider their decision.

[23] On 27 February 2018 Mr Fullerton sent Ms Monteleone an email expressing his disappointment that he had not been contacted by anyone from Lindemans and complained about their alleged lack of concern during his absence from work and that only Ms Monteleone had been in contact with him.

[24] On 28 February 2018, Lindemans replied to Ms Monteleone’s email declining to reconsider their decision to have Mr Fullerton’s assignment cancelled. 14

[25] Ms Monteleone contacted Mr Fullerton that afternoon to advise him that his assignment with Lindemans had been cancelled. Mr Fullerton expressed his disappointment about the way Lindemans had handled his complaint. 15 Mr Fullerton’s evidence was that he wanted to have a meeting with both Lindemans and Programmed to see if he could obtain some answers as to why his assignment had been cancelled and at the very least he wanted reasons put to him in writing. Mr Fullerton was advised that neither request would be granted and was told that he would be offered alternative assignments through Programmed.

[26] It is not in contention that Mr Fullerton was offered alternative placements with different host employers however he declined due to the nature of the work being manual labour. Mr Fullerton’s evidence was that he held a security license and therefore the manual labour work was below his skill set. Mr Fullerton informed Programmed that he was not immediately available as he had other matters to attend to and that he would not accept an engagement unless it was for security work. Programmed invited Mr Fullerton to let them know when he was available to accept another position and they would then actively look to place him.

[27] Mr Fullerton remained aggrieved because he felt he had been left without any answers from Lindemans as to why he had been directed not to take his laptop into the guard house whilst on duty and as to why his assignment was cancelled. In order to obtain a further response to his complaint Mr Fullerton lodged this application.

Conclusion

[28] Programmed are a labour hire provider who hold a contractual relationship with Lindemans in Victoria to provide employees to work at Lindemans. This relationship is subject to a commercial contract with Treasury Wine Estates (TWE). The contract stipulates terms and conditions of business, including that Programmed must provide services in accordance with TWE’s requirements which meet or exceed the specifications, and in accordance with TWE’s directions and that Lindemans may request at any point in time to end the assignment of an employee at its site. Under the terms of the contract Lindemans has the discretion to end an assignment for any reason, including relating to operational and procedural requirements or to capacity or conduct issues. 16

[29] Programmed provide approximately 3 security officers to Lindemans on an as needs basis. Under the terms of the contract Programmed has no entitlement to request or require Lindemans to retain an employee assigned to one of its sites. Therefore it is not possible to place someone at a Lindemans site if Lindemans does not want that person there.

[30] On the evidence before me Mr Fullerton was engaged by Programmed as a labour hire casual employee. His assignment with the host company Lindemans came to an end and he was not permitted to return to Lindemans. Although it does not form part of my determination, I observe that the reasons provided to Mr Fullerton were for operational reasons and, although in some circumstances this was not an ideal explanation, it is not unusual in the labour hire industry and sadly it is the casual employee who is often left aggrieved by what has happened, as was the case with Mr Fullerton.

[31] However it is not contested that efforts were made by Programmed to secure Mr Fullerton a new assignment and his employment with Programmed had continued, albeit he was not actively engaged at his own request.

[32] Mr Fullerton therefore was not dismissed at the initiative of the employer. The requirement of s.385(a) of the Act is not made out and Mr Fullerton’s application made under s.394 of the Act must be dismissed. An order 17 to that effect will be issued with this decision.

COMMISSIONER

Appearances:

S. Fullerton on his own behalf;

K. Greig for the Respondent

Hearing details:

2018

Mildura

17 July

Printed by authority of the Commonwealth Government Printer

<PR609251>

 1   Exhibit R2

 2   Form F3 – Employer Response to Unfair Dismissal Application

 3   Exhibit R2

 4   Exhibit A1

 5   Exhibit R6

 6   Ibid.

 7   Exhibit R1, [2]

 8   Ibid., [20] – [21]

 9   Ibid., [24]; Exhibit A1

 10   Exhibit R1, [24] – [26]

 11   Ibid., [29]

 12   Ibid., [31]

 13   Ibid., [32] – [33]

 14   Ibid., [34] – [35]

 15   Ibid., [38] – [40]

 16   Exhibit R5, [8]

 17   PR609252