Tracey Smart v Fuse Recruitment Melbourne Pty Ltd
[2023] FWC 1448
•22 JUNE 2023
| [2023] FWC 1448 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Tracey Smart
v
Fuse Recruitment Melbourne Pty Ltd
(U2023/4108)
| COMMISSIONER WILSON | MELBOURNE, 22 JUNE 2023 |
Application for an unfair dismissal remedy – dispute as to whether a “dismissal” occurred within the meaning of the Fair Work Act 2009 – no dismissal – no question of extension of time arises – application dismissed
This decision concerns an application made by Tracey Smart alleging unfair dismissal against Fuse Recruitment Melbourne Pty Ltd (Fuse Recruitment or the Respondent). Ms Smart submitted in her initiating application that she was dismissed on Thursday 20 April 2023. As her application was lodged in the Fair Work Commission (the Commission) on Friday 12 May 2023, these circumstances potentially require consideration of whether an extension of time for filing is required as the filing date was more than 21 days after her dismissal was said to take effect. As a consequence, the application was programmed for hearing and determination of the extension of time question.
However, in its submissions filed on 15 June 2023 the Respondent objected to the application proceeding on the ground that Ms Smart was not dismissed. For the reasons set out below I accept this reasoning and find that since Ms Smart has not been “dismissed” within the meaning of the Fair Work Act 2009 (the FW Act) it is unnecessary to further consider the extension of time matter and Ms Smith’s originating application must itself be dismissed.
Consistent with the Commission’s usual practice on these matters, with the application having seemingly been made out of time according to the initiating application, the matter was referred to me for hearing and determination of whether an additional period of time should be allowed for the making of Ms Smart’s application. Fuse Recruitment does not address the extension of time matter in its written submissions however objects to the unfair dismissal application on the basis that Ms Smart was not dismissed. Rather she was on a casual assignment at a client site and her assignment with the client ended.
On 20 June 2023, a hearing was conducted in respect of a purported request to extend time for the filing of the application. Evidence was received from Ms Smart on her own behalf and the Respondent was represented by Mr David Horn, Team Leader, Manufacturing and Ms Melissa Kennedy, National Manager, Recruitment.
Irrespective of the subject matter of the objection to be determined, the Commission is obliged to determine whether the Applicant was dismissed and if she was, pertinent to consideration of an extension of time, the date of effect of any dismissal. It follows that if Ms Smart was not “dismissed” within the meaning of the FW Act that consideration of an extension of time is not required.
BACKGROUND
Ms Smart commenced employment with the Respondent on 29 March 2022. The contract of employment before the Commission dated 29 March 2022 is for a position as an on-hire casual. The contract of employment provides that Ms Smart was engaged to work for the Respondent’s client Opal Bag Solutions as a Production Operator from 29 March 2022. This was a casual assignment.
In her materials Ms Smart claims that her last day of employment with Opal Bag Solutions was 4 April 2023. She submits that she started her shift at 7.30AM on 4 April 2023 undertaking her usual duties at the box machine (as the name suggests the machine assembles boxes). During the course of her shift that day she walked to the other end of the warehouse and:
“only 1 machine was working, the boxes coming along the conveyor belt, as I approached the box tape dispenser machine, I noticed 2 boxes were jammed, I i tried to pull the first box out and the arm of tape machine came down and squashed my right hand and I pulled my hand out from underneath the arm.”[1]
Ms Smart submits that she notified her leading hand Kin Nguyen of the incident and later received medical treatment at a medical centre for her injuries.
Ms Smart further submits that she was cleared to return to work on Monday 17 April 2023. This is supported by the Certificate of Capacity before the Commission which provides Ms Smart had no capacity for employment from 4 to 14 April 2023. Ms Smart claims:
“Leah from Fuse Recruitment, told me she received a email saying No work for Monday, and I didn't receive any more information about going back. I tried ringing Nicola Pavan, and got no response, on the 20th April I rang the office again, Nicola sent me a text later on that morning, saying she will have more information later that day, when she did ring me that afternoon, she told me Opal had said they were light on work and my services were longer required.”[2]
The Applicant alleges she was dismissed following the incident on 4 April 2023 stating in her evidence that “Kin Nguyen has always said if you get injured in this workplace they will dismiss you.”[3]
The Respondent denies the Applicant’s employment has been terminated. Fuse Recruitment claims Ms Smart “was on a casual assignment at one of our client sites. Her assignment at that client ended, she was not dismissed. We have had discussion with Tracey around other employment but have had nothing suitable at this time.”[4]
The contract of employment contains a number of clauses which are relevant to assist in the determination of whether there has been a cessation of employment. The relevant clauses of the contract of employment are extracted below:
· Clause 2 summarises Ms Smart’s “assignment” as being a Production Operator at Opal Bag Solutions;
· Clause 3 provides that the contract applies to all assignments undertaken by Ms Smart;
· Clause 4.1(d) provides that “the termination of an Assignment for whatever reason does not of itself constitute the termination of your employment”;
· Clause 4.1(e) provides that Fuse Recruitment does not “guarantee or commit to offer you any Assignment(s), or to do so with any particular frequency or regularity, or on any particular terms”;
· Clause 4.1(k) states Fuse Recruitment is “under no obligation to offer you any future Assignment”; and
· Clause 5.1 provides that Fuse Recruitment may “terminate the Assignment and/or the employment relationship upon one hours’ notice”.
LEGISLATION
Section 386 of the FW Act sets out when a person has been dismissed from their employment and states:
“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 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 AND CONCLUSIONS
It is necessary to determine if the Applicant was dismissed pursuant to s.386 of the FW Act. If I find she was not dismissed pursuant to s.386 of the FW Act, the application will be dismissed.
The definition within s.386 provides two limbs for consideration, however for present purposes only one is relevant, being the test in s.386(1)(a) as to whether Ms Smart’s employment with her employer has been terminated on the employer’s initiative. The Full Bench in Khayam v Navitas considered at length the correct interpretation of “terminated on the employer’s initiative” holding, so far as is relevant to Ms Smart’s case, that the analysis of whether there has been a termination at the initiative of the employer for the purpose of s 386(1)(a) is to be conducted by reference to termination of the employment relationship, not by reference to the termination of the contract of employment operative immediately before the cessation of the employment;[5] and that the expression “termination at the initiative of the employer” is a reference to a termination that is brought about by an employer and which is not agreed to by the employee in which case a focus on the conduct of the employer will be required with it being insufficient to assert the terms of the contract.[6]
Ms Smart argues she was dismissed shortly after her workplace injury and that her supervisor had repeatedly cautioned her and others in her work group that they would not be engaged after an injury.
That situation came to pass, it seems from her evidence, when, having been injured at work on 4 April 2023 and then having advised her supervisor she had been cleared to return to work on either 17 or 20 April 2023 the supervisor told Ms Smart on 20 April 2023 that there was no work available for her. After learning that situation Ms Smart then called Fuse Recruitment’s office the same day and was told that her services in connection with her assignment at Opal Box Solutions were no longer required.
Fuse Recruitment argue that what was told to Ms Smart was that she was no longer required for work at the Opal Box Solutions assignment, and that such was not her being told that she was dismissed. As detailed above, its brief submissions on the subject were that:
“Tracey was on a casual assignment at one of our client sites. Her assignment at that client was ended, she was not dismissed. We have had discussions with Tracey around other employment but have had nothing suitable at this time”.
In oral submissions Mr Horn, Fuse Recruitment’s Team Leader – Manufacturing clarified that no work offers as such had been communicated to Ms Smart as none were available, but that work would be offered to her if it was available. Ms Smart denies that even this limited information was communicated to her.
After consideration of the material before me I find Ms Smart’s employment has not been terminated by Fuse Recruitment. I am persuaded by the Respondent’s submission that Ms Smart’s assignment with Opal Box Solutions came to an end and there have been no suitable assignments to offer Ms Smart since her clearance to return to work. Such situation is consistent with the terms of the contract applying to her; work at the assignment would be offered to her as and when it was available but not longer; and that the contract of employment subsisted beyond the confines of the one assignment.
I find that Ms Smart was not dismissed by the Respondent. This in turn means she was not “dismissed” within the meaning of s 386 of the FW Act. Accordingly, her application for unfair dismissal remedy is not able to progress further and itself must be dismissed. An Order doing so is issued at the same time as this decision.
COMMISSIONER
Appearances:
Ms T. Smart for herself
Mr D. Horn and Ms M. Kennedy for the Respondent
Hearing details:
Melbourne (via video conference);
20 June;
2023.
[1] Form F2, Unfair Dismissal Application, filed 12 May 2023.
[2] Ibid.
[3] Ibid.
[4] Respondent Outline of Submissions: Objections, filed 15 June 2023, item 5e.
[5] [2017] FWCFB 5162, [75](1).
[6] Ibid, [75](2).
Printed by authority of the Commonwealth Government Printer
<PR763340>
0
0
0