Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - jurisdiction - whether dismissed - labour hire - separation certificate - whether at initiative of employer - no dismissal - jurisdictional objection upheld

• [1] On 4 July 2024 Anthony Alexandrou (Mr Alexandrou or the applicant) made an unfair dismissal application under s 394 of the Fair Work Act 2009 (Cth) (FW Act) alleging he had been unfairly dismissed on 14 June 2024.

• [2] Mr Alexandrou's application is against Randstad Pty Ltd (Randstad, the employer or the respondent).

• [3] Randstad oppose the application. It filed a response on 17 July 2024 raising a jurisdictional issue (no dismissal). Randstad say that Mr Alexandrou resigned when he requested, and was then provided, an employment separation certificate.

• [4] I issued directions on 22 August 2024 and heard the matter by video on 6 September 2024.

• [5] Mr Alexandrou was self-represented. Randstad was represented by an internal officer Mr Goni (Senior Industrial Relations Business Partner) assisted by Mr Dean (Director of WHS, Risk and Industrial Relations).

• [6] I received evidence and submissions, including oral evidence, from two persons:

• Ms Amanda Eichler (former Principal Consultant, Trades and Labour).

• [7] Whilst most facts are not in dispute, one relevant factual dispute concerns the content of a second telephone conversation between the applicant and Ms Eichler on 17 June 2024. For reasons set out below, I prefer the evidence of Ms Eichler on the detail of that conversation.

• [9] Randstad is a labour hire agency which supplies labour to host businesses.

• [10] In September 2022 Mr Alexandrou obtained employment as a machine operator at Adbri's Sellick's Hill quarry in Adelaide. He did so by becoming a labour hire employee. He was placed by Ranstad (his employer) to work at a quarry operated by their client (Adbri), the host business.

• [11] To secure this work, Mr Alexandrou entered into a 'temporary employee contract of service' dated 8 September 2022 with Randstad. That contract[1] provided that Mr Alexandrou was employed by Randstad on assignments to a host business. Clause 2.4 of the contract provided:

"2.4 On completion of an Assignment, Randstad will use reasonable endeavours to obtain an alternative Assignment for you. However, the casual nature of your engagement means there is no guarantee of ongoing or regular work. Randstad is not liable to pay you if it does not offer you any Assignments, or a particular Assignment."

• [12] Mr Alexandrou commenced as a labour hire employee on 22 September 2022. He was employed and paid as a casual. At Adbri he worked full time hours, with regular and extensive overtime. He continued on that basis for two years.

• [13] At times relevant to this matter, the Randstad officer managing Mr Alexandrou's placement at Adbri was Randstad's Principal Consultant Trades and Labour, Ms Eichler.

• [14] Mr Alexandrou was considered by Randstad (Ms Eichler) and Adbri to be a good and reliable employee.

• [15] In June 2024, Mr Alexandrou was offered full time direct employment by Adbri subject to satisfactory completion of pre-employment screening and onboarding requirements. Mr Alexandrou eagerly accepted this prospect.

• [16] On 13 June 2022, Mr Alexandrou was required by Adbri to take a drug and alcohol test as part of Adbri's pre-employment requirements.

• [17] Mr Alexandrou failed the test. Mr Alexandrou tested positive for cannabis. Mr Alexandrou believed this was because he was a user of cannabis for, what he stated in his evidence to be, medicinal purposes. Mr Alexandrou had not disclosed to Adbri (the host business and prospective direct employer) or Randstad (the current employer and labour hire agency) that he was a user of cannabis.

• [18] Mr Alexandrou finished his work shift on 13 June.

• [19] Mr Alexandrou was then informed by Adbri that he had tested positive to cannabis and that he had breached Adbri's policy concerning drug and alcohol use. He was informed that his placement at Adbri was immediately terminated. His onboarding by Adbri as a direct employee did not proceed further.

• [20] On the morning of Friday 14 June, Adbri informed Ms Eichler that Mr Alexandrou had failed a drug test and that his placement had been immediately terminated.

• [21] Ms Eichler then contacted Mr Alexandrou. Mr Alexandrou was upset and told Ms Eichler that he did not want to discuss the matter that day.

• [22] The next working day was Monday 17 June.

• [23] Mr Alexandrou had two telephone conversations with Ms Eichler that day. In both conversations he was very concerned about having lost his job at the quarry.

• [24] In the first, he explained that he had been a user of cannabis for medicinal purposes and asked Ms Eichler whether there was some way he could remain in the placement at Adbri. Upon questioning by Ms Eichler, he also explained that he had not disclosed this to Adbri or Randstad. Ms Eichler explained that he was bound by the host businesses policies during a placement and that included drug policies. Ms Eichler agreed to speak further to Adbri about the situation including obtaining details of its policies and related paperwork. Mr Alexandrou also stated that he was seeking legal advice on the situation.

• [25] Ms Eichler spoke again to Adbri, and obtained and examined its policy and reasons for ending the placement. She was advised that there were no options for a more limited placement than full time work as the policy had been breached and the drug use not disclosed.

• [26] Ms Eichler then again spoke to Mr Alexandrou by phone. She advised that Adbri would not reconsider its decision, that its drugs and alcohol policy has been applied and that no limited employment at the quarry could be arranged. She confirmed that his placement had been terminated by Adbri. Ms Eichler told Mr Alexandrou that Randstad, as his employer, would look for alternate placements for him from amongst its clients.

• [27] For his part, Mr Alexandrou told Ms Eichler that he thought it was very unfair that he had lost his job and expressed concern at being left without income. Mr Alexandrou told Ms Eichler that he needed to keep paying his mortgage and other bills, and would need to get unemployment benefits. He said that Centrelink had informed him (via his online search of its website) that he needed to give them an employment separation certificate from Randstad in order to get unemployment benefits.

• [28] At this point, there is an evidentiary dispute.

• [29] Ms Eichler's evidence was that she then expressly told Mr Alexandrou that the effect of asking Randstad to produce and send Centrelink an employment separation certificate was that he would thereafter no longer be its employee and unable to obtain its assistance in trying to find alternate placements. Ms Eichler's evidence was that in response Mr Alexandrou, upon learning this, said that he didn't want Randstad to cease finding him alternate employment. Ms Eichler's evidence was that the conversation concluded on the basis that Mr Alexandrou did not press his request for a separation certificate and Randstad would start looking for alternate placement options.

• [30] Mr Alexandrou's evidence was that he could not recall Ms Eichler specifically mentioning that a separation certificate would end his employment with Randstad. His evidence was that the conversation ended with an understanding that Randstad would seek to find him another placement but that he had not given up on trying to get his job at Adbri back.

• [31] I prefer the evidence of Ms Eichler to the extent of the difference. Her evidence was plausible and recall clear. She was resolute under questioning that she expressly told Mr Alexandrou that requesting the certificate meant that Randstad was being asked to state that Mr Alexandrou's employment would end. As an officer with Randstad for three years, Ms Eichler was familiar with separation certificates The caution she expressed to Mr Alexandrou was consistent with her knowledge and experience. Her evidence was plausible. Further, no longer being an employee of Randstad at the time of giving evidence, it was apparent from her disposition that she was not embellishing her evidence to assist the employer's case. She readily stated that she thought Mr Alexandrou to be a good hardworking employee. Her evidence is preferred.

• [32] Ms Eichler reported her conversations with Mr Alexandrou to her manager, Mr Mihalopoulos who advised her to ensure that the documentation she obtained from Adbri was placed by Randstad on the file.

• [33] Later on 17 June, Mr Alexandrou, in a further attempt to get answers and have Adbri's decision reversed, contacted Mr Mihalopoulos directly. He had one telephone conversation with Mr Mihalopoulos. Mr Mihalopoulos expressed concern and interest in the situation but was non-committal. Mr Alexandrou remained upset and frustrated.

• [34] The following day on 18 June, Mr Alexandrou became extremely concerned at being left with no income. He had not heard back from Ms Eichler, Mr Mihalopoulos or anyone else at Randstad about any other placement options or progress to have Abdri's decision reviewed. He himself hadn't been able to obtain any indication from Adbri that they would reconsider.

• [35] At 3.56pm that afternoon (18 June) Mr Alexandrou decided to ask Randstad for a separation certificate because he needed unemployment benefits to maintain basic income. He sent the following email to Randstad's payroll/HR department:[2]

My name is Anthony Alexandrou, i need a separation certificate so i can finalise my centrelink payments.

• [36] On 20 June, two days later, the payroll/HR officer sent Ms Eichler an email:[3]

The above candidate has requested a separation certificate. (904138519)

Have you advised the candidate that by requesting this separation certificate they no longer wish for Randstad to represent them? If so, do you have this in writing?

If you are unsure or this is a long term candidate please seek advice from your HR business partner before proceeding.

1. Please confirm the last date worked by candidate

1. Confirm the reason as to why candidate has ceased work through Randstad. Please refer to the below options and select the most applicable

• Shortage of Work
• Unsuitability for this type of work
• End of season or contract
• Redundancy
• *Unsatisfactory work performance (additional info required)
• *Misconduct as an employee (additional info required)
• *Employee ceasing work voluntarily (additional info required)
• *Other (additional info required)

• [37] Shortly after (at 4.04pm) Ms Eichler responded to the payroll/HR officer:[4]

• [38] Ms Eichler's evidence was that she did not respond to the question about whether she had told Mr Alexandrou about the effect of requesting a separation certificate because she had already done so. Ms Eichler's further evidence was that she nominated that the certificate state the reason for separation as 'shortage of work' because she did not want anything recorded that indicated that Mr Alexandrou had engaged in misconduct or was an unsatisfactory worker, because he wasn't.

• [39] The effect of Ms Eichler's response was that payroll/HR was provided the information required and authority to issue the employment separation certificate, in response to Mr Alexandrou's request.

• [40] Randstad issued the certificate on or about 25 June 2024 when it sent the certificate to Centrelink.

• [41] Mr Alexandrou was not directly informed by Randstad that it had sent the certificate he had requested. However, he subsequently saw the certificate when he logged into the Centrelink site and progressed his application for unemployment benefits.

• [42] Ms Eichler left Randstad's employment at the close of business on 21 June. Doing so was unrelated to matters concerning Mr Alexandrou. Her departure at the end of that week was planned. She went offline from late on 20 and during 21 June in order to manage a hand over.

• [43] Mr Alexandrou heard nothing further from Randstad about his employment or about any placement options after his email requesting the certificate of 18 June.

• [44] On 26 June Mr Alexandrou sent Mr Mihalopoulos a text message:[5]

"Hey Peter. Would you be willing to organise a face to face with myself, Adam and you? I think it's going to be the easiest way , and it may be an eye-opener to Adam, as he will have the opportunity to ask me anything he wants. I'm more than willing to undergo scrutiny for my position. I am confident and have well and truly proven that the medication I am currently on does not impede into my job."

• [46] On 1 July Mr Alexandrou sent Mr Schulze of Adbri a text message:[6]

"Hi Adam. Anthony here. I was just wondering what's happening? Would you be willing to catch up face to face and have a chat? I'd be more than happy to undergo scrutiny for my job. I really need to get back to work, I'm going to lose my rental and i have no family or friends to fall back on. I'm basically begging at this stage. I don't want to be homeless, please help me. Thanks"

• [48] Not having heard anything from Randstad, on 4 July 2024 Mr Alexandrou filed this application. His application stated that he had been dismissed by Randstad on 14 June.

• [49] Mr Alexandrou submits that his employment was terminated at the initiative of the employer within the meaning of s 386(1)(a) of the FW Act. He says that the employer's conduct was the "principal contributing factor" which resulted in the termination of his employment.

• [50] In support of this submission Mr Alexandrou relies on two matters:

• on or about 25 June 2024, Randstad sent a separation certificate to Centrelink which stated that his employment had ceased on 13 June 2024; and

• after he raised concerns with Randstad on 17 June 2024 about the fairness of the host business (Adbri) terminating his placement, Randstad ignored his requests for follow-up and failed to offer an alternate placement.

• [51] As such, Mr Alexandrou submits that he was dismissed within the meaning of the FW Act and therefore his application is within jurisdiction.

• [52] Randstad submit that it neither dismissed nor intended to dismiss Mr Alexandrou.

• [53] Randstad submit that Mr Alexandrou's employment ended at his initiative when on 18 June 2024 he requested that Randstad issue a separation certificate to that effect.

• [54] Randstad submit that from the time it became aware that Mr Alexandrou's placement at Adbri ended (14 June) until the time his employment ceased it made genuine attempts to understand what had occurred, communicated to him why employment at Adbri could not resume, and commenced searching its client listings to ascertain whether any other placements were available and could be offered.

• [55] Randstad submit that as there was no dismissal, the application is outside the Commission's jurisdiction and should be dismissed.

• [56] For there to be an unfair dismissal, s 394 requires a dismissal to have occurred as a jurisdictional fact. "Dismissal" for these purposes (and other purposes of the FW Act) is defined in s 386(1). It provides:

(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."

• [57] Determining whether, on the facts, a person has been dismissed is an objective exercise. That a person believes they have been dismissed or another believes or believed the contrary does not make it so.

• [58] A finding of whether there has been a dismissal is based on a consideration of the evidence as a whole, including inferences reasonably drawn from the conduct of the parties.

• [59] This principle was summarised in the Federal Court judgement of Rares J in Koutalis v Pollett:[7]

"...it depends upon what a reasonable person in the position of the parties would have understood was the objective position...based on what each party...had said or done, in light of the surrounding circumstances".

• [60] This approach was subsequently applied in the leading decision of a Full Bench of the Commission in Bupa Aged Care Australia Pty Ltd v Tavassoli[8].

• [61] Mr Alexandrou relies on s 386(1)(a). He submits that he was terminated "at the initiative of the employer". He does not assert that he resigned and was forced to resign.

• [62] Termination of an employment relationship will be "at the initiative of the employer" if the action of the employer is the "principal contributing factor" which leads to the termination of the employment relationship such that, had the employer not taken the action it did, the employee would have remained in the employment relationship.[9] Where termination is agreed by an employee, it will not be "at the initiative of the employer" within the meaning of s 386(1)(a).

• [63] In this matter, there is no express statement between Randstad and Mr Alexandrou, written or oral, of dismissal or termination.

• [64] However, Mr Alexandrou submits that Randstad's conduct in two respects, individually and collectively, amounted to conduct which terminated the employment relationship at its initiative.

• [66] Mr Alexandrou submits that his employment was terminated on Randstad's initiative when on or about 25 June 2024 Randstad sent a separation certificate to Centrelink which stated that his employment had ceased on 13 June 2024.

• [67] I have found that Randstad did send a certificate in these terms to Centrelink on or about 25 June 2024.

• [68] An employment separation certificate is a document issued by an employer to a government agency (Centrelink) to verify that the employment of a person has ended. The certificate is issued to enable that person to obtain unemployment benefits.

• [69] There may well be circumstances where an employer issuing an employment separation certificate stating that employment has ceased is properly characterised as a dismissal at the employer's initiative, or confirmation of such a dismissal.

• [70] However, not all circumstances in which an employment separation certificate is issued concern employment ending by dismissal. Employment can cease in a multitude of ways; for example (and without being exhaustive) by resignation, expiry of a fixed term, dismissal or mutual agreement. The fact that an employment separation certificate is issued by an employer does not necessarily mean that the person's employment ceased by dismissal.

• [71] Similarly, the fact that an employee requests an employment separation certificate does not mean that they have not been dismissed. Many employees make such requests precisely because they have been dismissed and need the certificate to secure unemployment benefits.

• [72] Nor is it the case that what an employer states or certifies in a certificate as the manner or reason for separation is evidence of that as a jurisdictional fact. Aside from the potential for such statements to be self-serving, a subjective belief does not determine such questions. Objective findings are what is required. In all cases, context and circumstance matter.

• [73] In this matter the following circumstances by which the certificate came to be issued are relevant.

• [74] Firstly, I have found that the certificate was requested by Mr Alexandrou through email on 18 June 2024.

• [75] Secondly, I have found that the request was made the day after Mr Alexandrou had been expressly informed by Randstad (via Ms Eichler) that if he was to request the certificate it would mean that his employment would cease. Consequently Randstad would no longer be able to place him in alternate assignments as a continuing employee once they had declared to a government agency that his employment had ended.

• [76] Thirdly, when first told this on 17 June Mr Alexandrou did not press his request for the certificate, preferring at that time for Randstad to continue searching for alternate placements. However, the following day Mr Alexandrou, under the pressure of requiring an income source, nonetheless sought the certificate to access unemployment benefits.

• [77] Fourthly, until such time as the certificate was sought, Randstad considered Mr Alexandrou to be its employee and had commenced looking for alternate placements, but not thereafter.

• [78] I find that the employment relationship between Mr Alexandrou and Randstad came to an end upon Mr Alexandrou requesting the employment separation certificate on 18 June 2024 and Randstad giving effect to that request. Randstad agreed to process the request on 20 June. It issued the certificate on or about 25 June.

• [79] The request of 18 June was conduct by Mr Alexandrou. The critical consideration in this matter is that, whilst until that point both parties acted consistently with an employment relationship existing, Mr Alexandrou requested the certificate fully aware that a request of that type would end the employment relationship because it would require Randstad to certify to a government agency that he was no longer employed.

• [80] I find that the employment relationship ended when Randstad issued the certificate on 25 June but that doing so was not at its initiative. The request for the certificate, when all circumstances are considered in context, was the principal contributing factor which brought the employment relationship to an end. That request was made at the initiative of Mr Alexandrou. I find that until it actioned Mr Alexandrou's request, Randstad had retained Mr Alexandrou on its books as an employee, was seeking alternate placement options with other host client businesses, and that it had intended to continue to do so but for Mr Alexandrou's request.

• [81] This being so, the issuing of the employment separation certificate, and the statement therein that employment had ceased, was not a termination on the employer's initiative. It was not a dismissal, as defined.

• [82] Mr Alexandrou submits that, aside from issuing the separation certificate, Randstad's conduct in failing to find an alternate placement, to action his request for a meeting with Adbri or to otherwise respond to his contact after 17 June 2024 brought the employment relationship to an end. In particular, Mr Alexandrou refers to:

• his requests for a three way meeting between he, Randstad and Adbri so he could explain why he failed the drug test and provide medical support for his use of cannabis; and

• failure to inform him of lines of inquiry for alternate placement.

• [83] I have found that on Friday 13 June Randstad (Ms Eichler) contacted Mr Alexandrou shortly after she learnt that Adbri had terminated his placement for a failed drug test. That day, Mr Alexandrou was understandably upset and told Ms Eichler that he did not want to then discuss the matter. The next working day (17 June) Mr Alexandrou had two conversations with Ms Eichler by phone. He also had one conversation with the manager, Mr Mihalopoulos.

• [84] In addition, on 17 June Ms Eichler again spoke to Adbri and sought and obtained relevant material about its decision to end the placement. Ms Eichler also spoke to Mr Mihalopoulos on the matter.

• [85] Whilst Mr Alexandrou was understandably upset and wanted more to be done (including a review of Adbri's decision) I do not conclude that Randstad failed to communicate with Mr Alexandrou about the matter in the wake of his placement being terminated or to take reasonable action to ascertain its client's position and explain those matters to Mr Alexandrou.

• [86] Nor do I find that Randstad failed to seek out alternate placements within Mr Alexandrou's skill set in the days immediately following 14 June 2024. I accept the evidence of Ms Eichler that she considered Mr Alexandrou to be a good worker and, given that, she examined her client list and internally mentioned to other consultants that Mr Alexandrou needed a fresh placement.

• [87] This search was however limited by two factors. Firstly, once the separation certificate request of 18 June was brought to Ms Eichler's attention by payroll on 20 June, and she provided payroll the relevant details for its completion, Ms Eichler considered that Mr Alexandrou had ceased his employment. Given their conversation on 17 June, this was a reasonable assumption to make. Secondly, the week of 17 June was scheduled to be Ms Eichler's last with Randstad. She was finishing up on 21 June. From the late afternoon of 20 June and on 21 June she was handing over and not directly dealing with employee (candidate) issues.

• [88] Mr Alexandrou also relies on the fact that no response was made to his texts of 26 June (to Mr Mihalopoulos of Randstad) and 1 July (to Mr Schulze of Adbri), seeking a three way meeting with the client. Whilst a reply to these texts would have been courteous and respectful, the failure to do so did not end the employment relationship. By 26 June the employment relationship had already ended given that the certificate had been requested and issued. Moreover, the email of 1 July was to the client not the employer.

• [89] Whilst Randstad could have done more, and communicated directly and more frequently with Mr Alexandrou until it submitted the certificate on 25 June, I do not conclude that the limited communication by Randstad was such that it can objectively be said to have ended the employment relationship or caused Mr Alexandrou to do so.

• [90] Neither the conduct of Randstad in issuing a separation certificate or its conduct more generally in the wake of Mr Alexandrou's labour hire placement being terminated by the host business was, either individually or collectively, the principal contributing factor that brought the employment relationship to an end.

• [91] The principal contributing factor was conduct at the initiative of Mr Alexandrou when he requested that Randstad make a declaration to a government agency that his employment had ceased, knowing that such a request would mean that he would no longer be its employee or able to use Randstad to obtain an alternate placement in the labour market.

• [92] Further, and leaving aside the subsequent issuing of the certificate or conduct of Randstad, Mr Alexandrou's contention that (as per his application) he was dismissed on 14 June 2024 when he was no longer allowed to work at the Adbri site misconceives the well-established distinction between a work placement in a host business and an employment relationship between a labour hire employee and the employing labour hire agency.

• [93] For these reasons, Mr Alexandrou was not dismissed within the meaning of the FW Act as claimed or otherwise.

• [94] In arriving at this conclusion, I proffer no criticism of Mr Alexandrou in seeking the separation certificate for Centrelink and unemployment benefit purposes. He was placed in an invidious position. As a labour hire employee, his income was dependent upon the regular work he had secured during his two-year placement at Adbri. When that placement was terminated by Adbri he was left with no income despite still being employed by the labour hire agency.

• [95] In this context, seeking unemployment benefits was an entirely rational response. Centrelink's requirement that Mr Alexandrou first produce a separation certificate from his employer was a requirement of a government agency, not his nor his employer's. He was left to choose between remaining on Randstad's books as an employee (but with no income unless and until he secured an alternate placement) or applying for unemployment benefits which would mean that he was no longer employed.

• [96] This dilemma raises obvious policy issues for government.

• [97] In the case of labour hire, an employment relationship commonly continues to exist between a person and a labour hire agency once a particular paid placement has ceased. Termination of a paid placement does not necessarily mean that the employment relationship with the employing agency has ended. In those instances, there is a period of continuing employment but no work and therefore no income. The duration of these periods without income can vary and cause obvious hardship.

• [98] To the extent this raises questions about fairness of government agencies requiring, in order for a labour hire employee to be eligible for unemployment benefits, certificates verifying that employment has ceased (rather than, for example simply that paid work has ceased) is a matter for policy makers, not the Commission.

• [99] As Mr Alexandrou was not dismissed within the meaning of the FW Act, the application is beyond jurisdiction. The respondent's jurisdictional objection is upheld. The application must be dismissed.

• [100] An order giving effect to this decision accompanies its publication.[10]

O. Goni, of and on behalf of, Randstad Pty Limited, with D. Dean assisting

[7] [2015] FCA 1165, [43]

[8] [2017] FWCFB 3941

[9] City of Sydney RSL & Community Club Ltd v Balgowan [2018] FWCFB 5 citing Mohazab v Dick Smith Electronics (No 2) [1995] IRCA 625; (1995) 62 IR 200; Khayam v Navitas English Pty Ltd [2017] FWCFB 5162, [75]

[10] PR779229

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