U2017/11251- Application for an unfair dismissal remedy – matters heard concurrently - jurisdictional issues - whether person employed by host business of labour hire company – indices of contract of employment - whether subsequent offer of employment by host business created employment relationship prior to offer being withdrawn – whether termination at initiative of employer – whether joint employment - whether minimum period of employment served – application dismissed

U2017/11252- Application for an unfair dismissal remedy – matters heard concurrently - jurisdictional issues - whether person employed by labour hire company – contract of employment found – whether dismissed after host business refused employee work assignment under Labour Supply Agreement – employer assignment of alternate work – employee declined further work other than at original assignment –– termination not at initiative of employer – application dismissed

[1] These unfair dismissal matters have a number of unusual features. They concern a worker with allegedly two identities. They concern two alleged employers and a claim of joint employment. They involve multiple jurisdictional issues.

[2] On 22 October 2017 a person under the name of Mr Constantinos Trakas (Mr Trakas or ‘the applicant’) made two applications to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to the one set of circumstances.

[3] He claims in application U2017/11251 that he was unfairly dismissed on 12 October 2017 by Baiada Poultry Australia with his dismissal taking effect on 20 October 2017.

[4] He claims in application U2017/11252 that he was unfairly dismissed on 12 October 2017 by Chandler MacLeod with his dismissal taking effect on 20 October 2017.

[5] The grounds of both applications are similar but not identical.

[6] In respect of both applications he seeks reinstatement.

[7] It was apparent at the hearing of the matters that the respondent party to each application was a trading name but not a legal entity of the alleged employing business. By consent of each respondent, I granted Mr Trakas’ request to amend his application such that the respondent to U2017/11251 became BPL Adelaide Pty Ltd (in lieu of Baiada Poultry Australia) and the respondent to U2017/11252 became Ready Workforce Pty Ltd trading as Chandler MacLeod (in lieu of Chandler MacLeod). 1 For the sake of convenience, in this decision I refer to ‘Baiada’ and ‘Chandler MacLeod’ as the descriptors of the respective respondent parties.

[8] Both Baiada and Chandler MacLeod oppose the applications and each raise jurisdictional issues.

[9] Baiada operates a chicken processing factory at Wingfield in Adelaide’s north-western suburbs. It says that it did not employ Mr Trakas at any relevant time. It says that…

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.

Continue reading Trakas v BPL Adelaide Pty Ltd

Details

AGLC: Trakas v BPL Adelaide Pty Ltd [2018] FWC 1530
Case: [2018] FWC 1530
Decision Date: 16 MARCH 2018

CaseChat Overview and Summary

In the Fair Work Commission, Trakas made an application for unfair dismissal remedy against BPL Adelaide Pty Ltd. Trakas claimed that he was unfairly dismissed by BPL Adelaide Pty Ltd, which engaged him through a labour hire company. The primary dispute centred around the nature of the employment relationship and whether Trakas had completed the requisite minimum period of employment prior to his dismissal. The Commission was tasked with determining the validity of the dismissal and whether the necessary criteria for an unfair dismissal claim were met.

The legal issues encompassed the identification of the actual employer, the interpretation of the employment contract, and the determination of whether Trakas was employed directly by BPL Adelaide Pty Ltd or by the labour hire company. The court examined various indices to ascertain the true employment relationship, such as the control exerted by BPL Adelaide Pty Ltd over Trakas's work, the payment of wages, and the provision of equipment and uniforms. Additionally, the court considered whether an employment relationship was established when BPL Adelaide Pty Ltd offered Trakas a position directly, even though this offer was subsequently withdrawn.

The Commission concluded that Trakas was not employed by BPL Adelaide Pty Ltd but rather by the labour hire company. The offer of employment by BPL Adelaide Pty Ltd did not create a prior employment relationship since it was never finalised. Furthermore, the dismissal was not initiated by BPL Adelaide Pty Ltd, but rather by the labour hire company. Given these findings, the application for unfair dismissal was dismissed as Trakas did not satisfy the necessary employment period requirement. The Commission held that since Trakas was not employed directly by BPL Adelaide Pty Ltd, the dismissal did not fall within the scope of unfair dismissal provisions.

Orders