Tuan Hai Kim v Country Road Group Pty Ltd T/A Country Road Limited

[2019] FWC 158

[2019] FWC 158

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tuan Hai Kim
v
Country Road Group Pty Ltd T/A Country Road Limited
(U2018/8721)

COMMISSIONER GREGORY MELBOURNE, 5 FEBRUARY 2019

Application for an unfair dismissal remedy – jurisdictional objection – not an employee.

Introduction

[1] Mr Tuan Hai Kim worked at the Country Road Group Pty Ltd T/A Country Road Ltd (“Country Road”) from 19 September 2016 until 30 July 2018. He was located at its Omni Fulfilment Centre (“OFC”) at Truganina during this time. However, on 30 July last year he was told he would not be offered any further work at the OFC. Mr Kim subsequently lodged an unfair dismissal application which was received by the Commission on 20 August 2018.

[2] However, the Commission subsequently received correspondence from Country Road advising that Mr Kim was not employed by the Country Road Group at any time. It also indicated that it refused on this basis to participate in any telephone conciliation of the matter and sought to have its jurisdictional objection dealt with at first instance before the matter proceeded any further. This decision accordingly deals with the jurisdictional objection raised by Country Road.

[3] Mr Kim appeared in the proceedings on his own behalf with the assistance of an interpreter, Ms Bich Ngoc Huynh. Ms Jaya de Zoete, In House Counsel, appeared on behalf of Country Road.

The Issue to Be Determined

[4] Section 382 of the Fair Work Act (Cth) 2009 (“the Act”) provides that a person is protected from unfair dismissal by their employer if at the relevant time “the person is an employee.” The section states in full:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.” 1

[5] As indicated, Country Road has raised a jurisdictional objection to the application on the basis that Mr Kim was never employed by Country Road. It submits instead that he was at all times employed by Kelly Services Australia Pty Ltd (“Kelly Services”), a business engaged by Country Road to provide casual labour services at the OFC in Truganina. The Commission is accordingly now required to determine this jurisdictional objection.

[6] If the Commission finds Mr Kim was not employed by Country Road then his application naming it as the Respondent in his unfair dismissal application must be dismissed. However, if the Commission finds Mr Kim was employed by Country Road then the matter will be set down for hearing again to enable his substantive unfair dismissal application to be dealt with.

The Evidence and Submissions

Country Road

Ms Jaya de Zoete

[7] Ms de Zoete is the In House Counsel at Country Road. She stated that Country Road entered into a contract with Kelly Services Australia Pty Ltd in June 2015 for it to provide recruitment and labour hire services to Country Road. This included the provision of casual labour services at the OFC in Truganina. A copy of the relevant contract was attached to her witness statement.

[8] Mr Kim was employed by Kelly Services Australia Pty Ltd as a casual labourer and performed various store person functions. This labour hire arrangement suited the requirements of the business, which experiences various seasonal and other fluctuations at different times of the year. Ms de Zoete attached to her witness statement a letter from Mr Dean Smyth, Branch Manager – Industrial & Trades, at Kelly Services indicating that Mr Kim was employed by Kelly Services and assigned to the OFC site from 19 September 2016 until 30 July 2018.

[9] She also stated that Mr Kim was not employed directly by Country Road at any stage. It was instead invoiced by Kelly Services for the labour services provided by Mr Kim, along with a number of other persons who also provided casual labour services at the OFC as employees of Kelly Services.

[10] Ms de Zoete also indicated that Mr Kim did apply for a position as a direct full-time employee of Country Road and was interviewed for that role in June last year. However, his application was unsuccessful. He was one of around 60 applicants for the available positions at that time.

The Respondent’s Submissions

[11] Country Road submits that it did not employ or directly pay Mr Kim at any time. He was instead at all times employed by a labour hire company. Therefore, he cannot bring an unfair dismissal claim against Country Road.

[12] It continues to submit that Mr Kim was employed at all relevant times by Kelly Services who provided labour services to Country Road at the OFC in Truganina. Mr Kim provided various labour services in this role and worked across online, hanging, VAS and outbound. Country Road was invoiced by Kelly Services for the labour services provided by Mr Kim and each invoice was paid directly to Kelly Services and not to Mr Kim for the labour services provided.

[13] A variety of factors had contributed to Mr Kim’s services no longer being required, including seasonal fluctuations which meant the business had reduced requirements at the OFC.

Mr Tuan Hai Kim

[14] Mr Kim provided an outline of argument based on the format provided by the Commission. He first worked at Country Road on 19 September 2016. He indicated at question 6a that he was engaged as a contractor. He continued to state, “I understand that I was hired by a labour hire company (Kelly Services), however the whole purpose of this unfair dismissal claim is to seek justice to determine why I was suddenly dismissed, especially when I was only told that I was not “working the way they want me to for my role,” despite working for two years prior.” 2

[15] Mr Kim also answered “Yes” 3 to the question at 6b, “Were you a labour hire employee?” He also provided an amount of additional detail in his application. Much of this material deals with the claim that he was unfairly dismissed by Country Road. It included details about the interview that Mr Kim was involved in for a full-time position at Country Road on 21 June last year. He also makes reference to the difficult conditions that he worked in from time to time, particularly when working in the trailer, which was particularly hot in summer and cold in winter. He also indicated that during the nearly two-year period that he worked at the OFC there were no issues raised in regard to his work performance and he was often praised for his hard work and dedication.

[16] He also indicated that he still does not understand why he was no longer offered casual work at the OFC, and in August last year he made various attempts to try and contact the relevant managers at Country Road in an endeavour to obtain an explanation about why his services were no longer required. This included a visit to the site on 8 August when he attempted to speak to the relevant Manager. However, he was told at the time of that visit that he was not to return to the site or the police would be contacted. However, Mr Kim denied that he had acted in an aggressive manner on that occasion, and was only endeavouring to obtain an explanation about why his services were no longer required.

[17] He also indicated that if it was considered that he had some shortcomings in terms of his skills then he was prepared to undertake further training until such time as he could again make application for full-time employment with Country Road at the OFC.

Consideration

[18] Mr Kim is clearly unhappy about the fact that he is no longer being offered work at the OFC at Truganina. He says that he was a dedicated worker and was often required to work in difficult conditions, particularly when loading and unloading the trailer. I have no reason to take issue with any of his submissions in this regard. His concerns are accentuated by the fact that he does not understand why his services were dispensed with, and why he is no longer being offered shifts at the OFC. He subsequently endeavoured to obtain an explanation after being told that his services were no longer required, and this appears to have created further angst by damaging the relationship between Mr Kim and Country Road.

[19] However, as indicated at the outset the Commission is not at this point in time involved in determining Mr Kim’s substantive unfair dismissal application. It is instead dealing with the jurisdictional objection raised by Country Road, being that Mr Kim was never directly employed by Country Road, and therefore the application is misconceived in naming it as the respondent.

[20] Mr Kim indicated in the submission that he provided to the Commission that he understands that he was employed by a labour hire company, Kelly Services, during the time that he worked at Country Road’s OFC site. He also answered “Yes” to the question about whether he was a labour hire employee. Country Road also provided details in regard to the contract it has with Kelly Services to provide labour hire services in its Fulfilment Centre. It also provided a copy of a letter from Kelly Services indicating that Mr Kim was an employee of Kelly Services. There is nothing in the evidence or submissions of the parties to suggest that Mr Kim was ever directly employed by Country Road.

[21] It follows that Mr Kim cannot be a person protected from unfair dismissal by Country Road in the terms contemplated by section 382 of the Act. The jurisdictional objection raised by Country Road is accordingly upheld and Mr Kim’s unfair dismissal application is therefore dismissed.

COMMISSIONER

Appearances:

TH Kim, Applicant.

J de Zoete for the Respondent.

Hearing details:

2019.

Melbourne:

January 11.

Printed by authority of the Commonwealth Government Printer

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 1   Fair Work Act 2009 (Cth) s 382.

 2   Applicant’s Outline of argument: objections filed on 28 December 2018, question 6a.

 3   Ibid, question 6b.