Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - jurisdiction objection - whether applicant dismissed - no dismissal - application dismissed.

• [1] Mr Kristijan Tasev says he was unfairly dismissed by his former employer, Tusk Group Pty Ltd (Tusk). Mr Tasev's claim under s 394 of the Fair Work Act 2009 (Cth) (Act) cannot go ahead unless he was "dismissed". This decision concerns whether Mr Tasev was "dismissed" by Tusk or whether, as I find, he voluntarily resigned or abandoned his employment.

• [2] Tusk is a recruitment and labour hire company. Tusk provides labour hire services for a range of clients, one of whom is the well-known retailer Kmart. For Kmart, Tusk provides personnel to work across various sites, including Kmart's distribution centre located in Truganina, Victoria. For this distribution centre, Tusk employees worked within the sortation, pick & pack, dispatch and receiving areas.

• [3] Mr Tasev was employed by Tusk under a contract of employment dated 23 August 2023. Mr Tasev's contract of employment described him as a "casual on-hired employee". The express terms of his contract included the following:
  • Termination of an assignment by the Employer does not of itself constitute termination of employment.
  • The Employer may direct where and how the Employee shall perform work on any particular assignment.
  • The Employer may change or terminate assignments of the Employee without reason and the Employee has no right to ongoing employment on any particular assignment.
  • The employment relationship is and remains between the parties to this Agreement and no employment relationship exists or shall be created between the Employee and any Client of the Employer to whom the Employee may be assigned to perform work.

• [4] From around the time he was first employed by Tusk, Mr Tasev was on-hired by Tusk to work on assignment at the Kmart distribution centre.

• [5] Operations at the Kmart distribution centre were partly managed by another entity, Toll. While the exact details were not before me, it is tolerably clear that the commercial arrangements at the distribution centre provide Toll with the authority to tell Tusk which employee it can or cannot assign to that distribution centre.

• [6] On 7 October 2024, an incident at the distribution centre occurred. It is unnecessary to describe the incident in detail (and the facts before me do not permit me to do so), but it involved Mr Tasev and another Tusk employee. As a result of the incident, both Mr Tasev and the other employee were removed from the site. The two employees were not removed by Tusk but they were removed by Toll.

• [7] Emma Rustichelli is an OHS Coordinator for Tusk. She prepared a witness statement in the proceeding and was cross-examined. I consider her evidence reliable and was given no reason to doubt the following matters I describe. Among Ms Rustichelli's other duties, she is responsible for investigating complaints and incidents relating to workplace behaviour.

• [8] Ms Rustichelli liaised with Toll about the removal of Mr Tasev from site. As the matter involved Tusk employees, Ms Rustichelli also investigated the incident and did so fairly promptly. She spoke to the two employees in question and others, plus reviewed some CCTV footage. Ms Rustichelli was unable to definitively confirm who initiated the altercation, although she did form the view that aspects of Mr Tasev's behaviour were inappropriate. It was her recommendation that Mr Tasev be given a warning. There was no recommendation for more serious disciplinary action.

• [9] In relation to Toll, Ms Rustichelli spoke with the relevant Toll Area Manager on 9 October 2024 about her findings. Ms Rustichelli recommended to Toll that Mr Tasev would benefit from education and performance management prior to returning to work. Contrary to the tenor of Ms Rustichelli's indication that Mr Tasev should return to the site, Ms Rustichelli was told words to the effect "the site does not want Kristijan back."

• [10] While Ms Rustichelli did not agree that Mr Tasev's conduct warranted removal from the Kmart site, she correctly understood that Tusk was not permitted to continue Mr Tasev's assignment at the Kmart distribution centre.

• [11] On 10 October 2024, Ms Rustichelli spoke with Mr Tasev. She told him about the pending warning. Ms Rustichelli also spoke with another Tusk employee, Jasmine Alusoska about finding another assignment for Mr Tasev.

• [12] Ms Alusoska gave evidence. She prepared a witness statement in the proceeding and was cross-examined. I also consider her evidence reliable and was given no reason to doubt the following matters I describe. Ms Alusoska's role with Tusk is as a Workforce Specialist, which includes sourcing candidates for client assignments, primarily in the northern suburbs of Melbourne.

• [13] On 10 October 2024, Ms Alusoska called Mr Tasev and told him an assignment with Holman Industries as a casual pick packer was available in Broadmeadows. Mr Tasev accepted the assignment. There was a 'meet and greet' with Holman Industries on 11 October 2024, which evidently went well.

• [14] On 14 October 2024, Mr Tasev commenced work on assignment with Holman Industries.

• [15] Notwithstanding Mr Tasev's new work assignment at Holman Industries, he lodged his unfair dismissal application against Tusk at 6.13pm that night.

• [16] Mr Tasev continued to work on his assignment at Holman Industries. That work continued over the next few weeks.

• [17] On 6 November 2024, Holman Industries contacted Ms Alusoska and told her that it had performance concerns with Mr Tasev, and it wished to discontinue the assignment with him. The same day, Ms Alusoska called Mr Tasev and told him what had happened. She also told him she would continue to source an alternative assignment. Mr Tasev said he needed work "ASAP" and said he would also look for work himself.

• [18] On Friday, 8 November 2024, Ms Alusoska sent Mr Tasev a text message saying she had found a job opportunity starting on Monday. She asked him to give her a call. On 8 November 2024, Ms Alusoska also sent the following email:

Could you kindly give me a call back in regards to work starting next week

• [19] At about 5.40pm on the Friday, Mr Tasev sent a text message response thanking her for looking but saying he might "have something already lined up, just waiting to find out on Monday for a go for induction.. ill let you know if anything changes".

• [20] On Monday, 11 November 2024, Mr Tasev replied to the above email. He wrote:

Thank you for reaching out. While I did attempt to secure a recent job opportunity, it unfortunately didn't come through. However, after careful consideration, I am inclined to decline any future positions for the time being.

I have concerns that accepting another assignment may undermine the seriousness of my case with Fairwork and jeopardize my standing. My primary focus at this stage is to ensure that the situation I've faced is addressed properly and that the unjust treatment I've experienced is formally acknowledged.

I appreciate your understanding and support in this matter.

• [21] Consistent with the above email concerning Mr Tasev's declination of any further assignments after 6 November 2024, his material filed with the Commission states "I have declined temporary placements to fully dedicate myself to pursuing justice, ensuring this does not happen to others in the future".

• [22] In light of the above email, Ms Alusoska did not make further attempts to find assignments for Mr Tasev.

• [23] In Mr Tasev's Form F2 filed on 14 October 2024, he says he was dismissed on 8 October 2024. In an email to the Commission on 27 November 2024, he clarified that date and said the correct date of dismissal was 9 October 2024. According to Mr Tasev, that was "when the investigation concluded, and I was officially barred from returning to work. This was the day I was informed by Toll/Kmart management that I would not be allowed to return, despite the findings of Tusk's investigation clearing me for reinstatement."

• [24] In short, Mr Tasev initially contended that the direction to Tusk for Tusk to remove Mr Tasev from the Kmart assignment constituted his dismissal.

• [25] At the hearing before me, Mr Tasev provided a different date and gave a different explanation. He now says that the date of dismissal was 11 November 2024.[1] He says that was the effective date of a "constructive dismissal". The constructive dismissal appears to be based on "the failure to redeploy"[2] Mr Tasev to the Kmart distribution centre. More broadly, Mr Tasev says that, after the Holman Industries assignment ceased:

"That's when I stopped trusting Tusk because they already failed me twice. They failed to protect me because of the measure of bias and the double standards when they were allowing the other worker to come back, and that led to the breakdown of the trust which also included the redeployment to Holman".[3]

• [26] The term "dismissed" has a particular meaning under the Act and means either:

• Mr Tasev's employment with his employer was terminated on the employer's initiative; or
• Mr Tasev resigned from his employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his employer.

• [27] There are some further exceptions to the definition of dismissal but none are presently relevant.

• [28] Mr Tasev was not dismissed, whether on 9 October 2024 or 11 November 2024 or any date in between.

• [29] Mr Tasev's contract of employment was very clear. His employment was not, contrary to Mr Tasev's apparent view, fixed in location at the Kmart distribution centre. To the contrary, the employment contract expressly and very clearly laid out that his work was to be for "assignments" with Tusk's clients and that those clients and assignments could change on very short notice. The contract also made very clear that a change in assignment did not end the employment relationship.

• [30] If there was any doubt that the employment relationship with Tusk did not end after Mr Tasev's assignment to the Kmart distribution centre ended, it was laid to rest with the fact that Tusk promptly committed to finding Mr Tasev new work and successfully did so. Mr Tasev then started that work.

• [31] A similar situation arose with the cessation of the Holman Industries assignment. Far from those events indicating any ending of the employment relationship at Tusk's initiative, the opposite is again the case. The evidence quite clearly demonstrates Tusk was making prompt and serious efforts to continue Mr Tasev's employment elsewhere. It is quite likely that Tusk would have been successful in doing so but for Mr Tasev's intervention, although that is not a matter I need decide.

• [32] It was Mr Tasev's email sent on 11 November 2024 that ended his employment relationship with Tusk. Mr Tasev evidently wishes to challenge the decisions of Kmart, Toll or Holman Industries regarding his assignments with them. So much can be accepted but Tusk did not dismiss Mr Tasev. Mr Tasev resigned.

• [33] As Mr Tasev was not dismissed by Tusk, his unfair dismissal claim against Tusk necessarily fails. Mr Tasev's application must be dismissed and an order giving effect to these reasons will be separately issued.[4]

[4] PR785377.

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