Walter Koch v NW Labour Hire No 2 Pty Ltd T/A National Workforce
[2024] FWC 3479
•16 DECEMBER 2024
| [2024] FWC 3479 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Walter Koch
v
NW Labour Hire No 2 Pty Ltd T/A National Workforce
(U2024/12834)
| DEPUTY PRESIDENT DEAN | CANBERRA, 16 DECEMBER 2024 |
Application for an unfair dismissal remedy – whether Applicant dismissed – no dismissal.
Mr Walter Koch (Applicant) has made an application for a remedy pursuant to s.394 of the Fair Work Act 2009 alleging that he was unfairly dismissed from his employment with the NW Labour Hire No 2 Pty Ltd T/A National Workforce (Respondent).
In his application, the Applicant says his dismissal took effect on 5 July 2024. This application was lodged on 28 October 2024, being some 94 days outside the 21-day period prescribed by s.394(2) of the Act. The Applicant subsequently changed his position, saying his employment ended the week or so prior to making his application.
The Respondent objects to the application on the grounds that the Applicant was not dismissed or, alternatively, that his application was out of time.
The matter was listed for hearing on 13 December 2024 to consider the jurisdictional issues. The Applicant appeared on his own behalf and Ms S Novak appeared for the Respondent.
For the reasons that follow, I am not satisfied that the Applicant was dismissed from his employment. Given this is a prerequisite for an unfair dismissal application to proceed, this application will be dismissed.
Background and evidence
The Respondent is a labour-hire provider that supplies workers to client organisations at various sites.
The Applicant worked on a casual basis for the Respondent as a driver from August 2022. Most recently, he performed work at a client site (Border Express) in Newcastle as a delivery driver, delivering and picking up from hospitals, hospitality venues and other locations.
On 13 June 2024 the Applicant injured his back and was unfit to work until 5 July 2024.
The Applicant advised the Respondent he was ready to return to work on or around 5 July 2024. He says he was told by the Respondent’s National Workforce Manager, Mr Mosley, that Border Express might only have 2 days work available for him at Newcastle going forward, and that Mr Mosely would call him when he was required.
The Applicant says he did not receive any further calls from Mr Mosely. However, he did not follow up with the Respondent about further work because he subsequently became unwell and was focussed on dealing with his health issues. He says he expected a phone call in spring from the Respondent when he anticipated that work would pick up again.
The Applicant gave evidence that he talked to a Border Express manager, Mr Lee, on or around 9 July 2024. The Applicant said he told Mr Lee that Mr Mosely had informed him there might only be two days per week of work available, which Mr Lee said was not right. Mr Lee said he would check and get back to the Applicant, but the Applicant said he did not hear from Mr Lee again.
In October 2024 the Applicant says he found out that someone else was doing his driving run. He said he was advised that Border Express had engaged another contractor to do the work that he had previously performed.
The Applicant says this is when he realised that he had been replaced and dismissed, and so he made this application in late October 2024.
The Applicant says he was dismissed because the work he was performing at Border Express is still being performed by another contractor.
Following a conference conducted by the Commission on 21 November 2024, in which the Respondent advised it was no longer supplying labour to Border Express for the Newcastle delivery run the Applicant had been performing, the Applicant gave evidence that he called Mr Lee to confirm whether this was the case. He also spoke to Mr Galliot, the Border Express Site Manager. The Applicant says he was informed by Border Express that it had not said in July 2024 that only two days per week would be available for the Applicant, and that it had engaged another contractor (ie not through the Respondent) when the Applicant had not returned to work.
The Respondent maintains that the Applicant has not been dismissed and is still employed on a casual basis. Further, the Applicant has been offered alternative assignment opportunities which he declined, even though he had worked at the same assignment location on a previous occasion.
Ms Novak gave evidence on behalf of the Respondent. She said its contract with Border Express to supply a driver at its Newcastle site had ended, and the client did not require it to provide labour anymore. The Respondent has no work in Newcastle to offer the Applicant, which is the only location the Applicant will work.
Ms Novak said that the Applicant is employed as a casual employee, and it will continue to consider him for work if any opportunities arise, as it would any other casual employee.
The Respondent gave evidence that following the conference in the Commission on 21 November 2024, it contacted Border Express to ascertain whether any work was available. Ms Novak said the Respondent was advised by Border Express that it had no need for labour hire services from it at that time. Ms Novak also confirmed that work was available around Tuggerah which was warehousing work and not driving work.
During the hearing, the Applicant acknowledged that the Respondent had looked after him during a previous workers compensation claim, and acknowledged that the Respondent did not have further work in Newcastle at that time.
Was the Applicant “a person who has been dismissed”
The Applicant can only make an application for an unfair dismissal remedy if he is “a person who has been dismissed”.
The meaning of ‘dismissed’ is defined in s.386(1) of the Act which 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 a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”
The evidence, which I accept, is that the Respondent no longer has a contract with Border Express to provide a driver at its Newcastle site. That assignment came to an end in July 2024.
The Applicant made it clear that he did not want to work at Tuggerah, which is where the Respondent is based and where the bulk of its work is located. The Respondent does not currently have any work in Newcastle.
There is no dispute that “the work” the Applicant says is “his”, and from which he says he was dismissed, is the Newcastle driving run for Border Express.
Clearly, the Respondent cannot require Border Express to engage it to supply labour. The evidence from both the Applicant and the Respondent suggests that Border Express has engaged someone else to perform the work, which it is entitled to do.
Crucially, the termination of this particular assignment with Border Express did not terminate the ongoing employment relationship between the Applicant and the Respondent. I am satisfied on the evidence that the Applicant remains employed on a casual basis with the Respondent. This is so, notwithstanding the Applicant is unlikely to be offered work in circumstances where he will not accept work outside of Newcastle, and the Respondent does not currently have any work in Newcastle.
For these reasons I find that the Applicant was not dismissed from his employment with the Respondent. This application is dismissed.
DEPUTY PRESIDENT
Appearances:
W Koch on his own behalf.
S Novak for NW Labour Hire No 2 Pty Ltd T/A National Workforce.
Hearing details:
2024.
By telephone:
December 13.
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