Tinkusurya Sugumar v Warner and Webster Pty Ltd Summary

[2024] FWC 2530

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Tinkusurya Sugumar
v

Warner and Webster Pty Ltd

(U2024/8149)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 17 SEPTEMBER 2024

Unfair dismissal application – employed by third party – application dismissed

Earlier today I dismissed an application for an unfair dismissal remedy made by Mr Tinkusurya Sugumar under s 394 of the Fair Work Act 2009 (Act). The F2 application named Warner and Webster Pty Ltd (Warner and Webster) as the respondent. Warner and Webster’s F3 response objected to the application on the basis that Mr Sugumar was employed by an agency, and that Warner and Webster had neither employed nor dismissed him. On 13 September 2024, Mr Sugumar filed written submissions which appeared to confirm that he was employed by Toll Personnel Pty Ltd (Toll).

On 16 September 2024, I wrote to Mr Sugumar and advised him that an unfair dismissal remedy can only be made against a person’s former employer (see ss 391 and 392), and not against third parties. I stated that his application appeared to have no reasonable prospect of success, and that his application should be dismissed under s 587(1)(c). I stated that I would hear from Mr Sugumar about these matters at a mention on 17 September 2024. Warner and Webster then submitted a letter from Toll which stated that Mr Sugumar was its employee, and that since May 2024 Toll had been operating as a labour hire provider to Warner and Webster. The letter stated that Mr Sugumar’s assignment at Warner and Webster ended on 23 June 2024, and that he was later given a new assignment with a different client.

At the mention, Mr Sugumar confirmed that these matters were correct. His complaint was that someone at Warner and Webster had told him that he would be offered a full-time job with the company, but that this never occurred. I concluded that there was no reasonable basis for Mr Sugumar to contend that he was dismissed by Warner and Webster and that the application had no reasonable prospects of success. I dismissed the application under s 587(1)(c) of the Act.

DEPUTY PRESIDENT

Appearances:

T. Sugumar for himself
C. Issa for Warner and Webster

Details of mention conference:

2024
Melbourne (by telephone)
17 September

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission dismissed an application by Tinkusurya Sugumar seeking an unfair dismissal remedy against Warner and Webster Pty Ltd. Sugumar argued that he had been dismissed by Warner and Webster, despite being employed by Toll Personnel Pty Ltd. The central dispute was whether Warner and Webster could be held liable for Sugumar's dismissal when he was not their direct employee.

The legal issue before the Commission was whether an unfair dismissal remedy could be granted against Warner and Webster, given that Sugumar was employed by Toll Personnel Pty Ltd, which provided labour hire services to Warner and Webster. The Commission needed to determine if Warner and Webster could be considered Sugumar's employer for the purposes of an unfair dismissal claim, despite the employment being through an intermediary agency.

The Deputy President, Colman, ruled that under sections 391 and 392 of the Fair Work Act 2009, an unfair dismissal remedy can only be sought against a person’s former employer. Since Sugumar was employed by Toll Personnel, and not Warner and Webster, the Commission found that Warner and Webster could not be held responsible for his dismissal. Furthermore, the Commission noted that Sugumar’s written submissions and the evidence presented confirmed that he was not dismissed by Warner and Webster. The application was dismissed under section 587(1)(c) of the Act for lacking reasonable prospects of success.

Tinkusurya Sugumar v Warner and Webster Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established