Tavia Sagele v The Commonwealth of Australia as represented by the Bureau of Meteorology

[2023] FWC 2477

[2023] FWC 2477

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Tavia Sagele
v

The Commonwealth of Australia as represented by the Bureau of Meteorology

(C2023/4619)

DEPUTY PRESIDENT BELL MELBOURNE, 4 OCTOBER 2023

Application to deal with contraventions involving dismissal – an employee of a recruitment firm not an employee of the respondent – application dismissed.

1. Mr Tavia Sagele has made an application under s 365 of the Fair Work Act 2009 (Cth) (Act) against the respondent, the Commonwealth of Australia as represented by the Bureau of Meteorology, alleging he was dismissed in contravention of the ‘general protections’ provisions of the Act.

1. By ss.12 and 386 of the Act, a “dismissal” is defined by reference to “employment”. The respondent denies that there was any employment relationship with Mr Sagele. It says that, at all times, the only employment relationship involving Mr Sagele was between him and a recruitment agency DFP Recruitment Services Pty Ltd (ABN 66 394 749 447). Accordingly, the respondent contends there was no employment relationship between Mr Sagele and the respondent, therefore, no “dismissal” for the purposes of s 365 of the Act.

1. Upon the matter being allocated to me, I issued directions requiring Mr Sagele to file and serve copies of the following documents:

1. His two most recent payslips (or equivalent document showing the named employer or payer on the payslip or pay statement).
2. Any contract of employment he has with DFP Recruitment Services Pty Ltd (ABN 66 394 749 447).
3. Any contract of employment he has with the Bureau of Meteorology.

1. In response to directions issued, Mr Sagele filed two payslips and a document titled ‘Terms and Conditions of Assignment’, which was a document headed and issued by ‘DFP Recruitment’. The Terms and Conditions of Assignment refer to an employment contract titled ‘Employment Agreement On-Hire Casual’. While the employment contract was not provided, the documents Mr Sagele did provide each clearly indicated that his actual employer was DFP Recruitment Services Pty Ltd. No employment contract with or payslips issued by the Bureau of Meteorology were provided.

1. In correspondence from chambers, I indicated to Mr Sagele that, on the material provided by him, it appeared to me that his employer was not the Bureau of Meteorology but was in fact DFP Recruitment Services Pty Ltd. I further indicated that it was unclear how I had jurisdiction to hear the application and that if I had no jurisdiction, Mr Sagele’s application would be dismissed.

1. I invited Mr Sagele to file further material (if any) explaining why the Bureau of Meteorology, and not DFP Recruitment Services Pty Ltd (or a related entity) was his employer, if he thought my preliminary assessment was wrong. No such material addressing that question was filed, other than to reiterate previous statements that Mr Sagele’s work was performed for the Bureau of Meteorology.

1. Upon the only material before me, Mr Sagele’s employer was not the respondent. While I appreciate that Mr Sagele might have misunderstood that fact because he was performing work at the Bureau of Meteorology but the legal position was clear. Mr Sagele was an employee of DFP Recruitment Services Pty Ltd.

1. It is for the reasons above that I find that Mr Sagele is not an employee of the respondent and nor was he “dismissed” by it. Accordingly, his application must be dismissed. An order[1] to that effect will be issued with this decision.

DEPUTY PRESIDENT

Hearing details:

Determined on the papers.

Final written submissions:

Submissions by the Applicant received on 11 September 2023.
Form F8A by the Respondent received on 21 August 2023.

[1] PR766572

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