Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - Jurisdictional objection - Not an employee - Application dismissed

• [1] On 9 April 2025, Ms Melis Kirdar (the applicant) applied to the Fair Work Commission for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth). She says that she was dismissed by National Australia Bank Limited (the respondent).

• [2] National Australia Bank (NAB) object to the application on the grounds that they did not employ Ms Kirdar and therefore did not dismiss Ms Kirdar. They say that Ms Kirdar was employed by Hays Specialist Recruitment (Australia) Pty Ltd.

• [3] Hays is not a respondent in this matter.

• [4] I issued directions on 13 May 2025 and listed the matter for a case management conference and for hearing.

• [5] Ms Kirdar did not attend the case management conference on 4 June 2025. Ms Kirdar also did not file any materials as required by the Directions. Ms Kirdar was informed of the consequences of failure to attend conferences and hearings of the Commission, and failure to comply with Directions.

• [6] At the respondent's request, I adjourned the hearing of this matter from 30 June 2025 to 14 July 2025.

• [7] On the day of the hearing, my chambers telephoned Ms Kirdar and sent her an email to remind her to attend the hearing and that, if she did not attend, the matter would proceed in her absence.

• [8] I have provided Ms Kirdar with ample opportunity to participate in this matter. I intend to proceed to determine the matter on the materials available to me.[1]

• [9] The issue in this matter is whether Ms Kirdar was an employee of National Australia Bank.

• [10] Section 394 of the Act provides that a person who has been dismissed may apply to the Commission for an order granting a remedy. Section 396 of the Act provides for the matters that the Commission must decided before considering the merits of an application and include:

(b) whether the person was protected from unfair dismissal

• [11] Section 382 provides that:

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

(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.

• [12] Section 380 of the Act provides that in Part 3-2 of the Act, employee means a national system employee and employer means a national system employer.

• [13] While employee is not defined in the Act, s 15AA to the Act provides:

Determining the ordinary meanings of employee and employer

(1) For the purposes of this Act, whether an individual is an employee of a person within the ordinary meaning of that expression, or whether a person is an employer of an individual within the ordinary meaning of that expression, is to be determined by ascertaining the real substance, practical reality and true nature of the relationship between the individual and the person.

(2) For the purposes of ascertaining the real substance, practical reality and true nature of the relationship between the individual and the person:

(a) the totality of the relationship between the individual and the person must be considered; and

(b) in considering the totality of the relationship between the individual and the person, regard must be had not only to the terms of the contract governing the relationship, but also to other factors relating to the totality of the relationship including, but not limited to, how the contract is performed in practice.

• [14] Based on the materials before me, I am not satisfied that Ms Kirdar was an employee of NAB. I have no material from Ms Kirdar of any contractual arrangements between her and NAB.

• [15] Ms Kirdar has not filed a witness statement, submissions or any materials, other than her Form F2 application form to which she attached a screenshot of a message. The message said:

We have been notified by NAB that your assignment will be finishing on the Mon, 7 Apr,2025. We hope you have enjoyed your experience with Hays and your time working at NAB.

Please ensure you submit your final timesheet on your last day to ensure you are paid.

• [16] The screenshot shows "Hays" at the top and is addressed to Ms Kirdar. The signatory of the message is not shown on the screenshot.

• [17] NAB made submissions that Ms Kirdar provided services to it as part of a standard labour hire arrangement and there was no employment relationship between it and Ms Kirdar.

• [18] NAB referred to a Master Services Agreement between it and Hays, but did not provide that to me as part of its materials.

• [19] NAB supplied me with a letter that confirmed Ms Kirdar's employment. The letter is dated 27 May 2025 and is signed by Mr Matthew Ayres, Payroll Manager, Hays Specialist Recruitment. The letter is not in the form of a witness statement, nor did Mr Ayres attend the hearing to put the letter into evidence. NAB also provided a document called "SAP Record," which is from its internal payroll record and refers to Ms Kirdar as being an External Agency Temp.

• [20] Section 590 of the Act allows me to inform myself in such manner as I consider appropriate and s 577 requires me to perform my functions in a manner that is informal and avoids unnecessary technicalities, as well as being fair and just, and open and transparent. Where Ms Kirdar has not otherwise participated in this application, nor challenges the material, I am of the view that it is not necessary to require the respondent to more formally put the material before me.

• [21] I am satisfied based on the materials provided by NAB, together with the screenshot supplied by Ms Kirdar, that she was employed by Hays and not by NAB. I have nothing from Ms Kirdar to find otherwise.

• [22] What appears to be the case in this matter is a standard and commonplace labour hire arrangement. The comments of Deputy President Asbury (as she then was) in Stevens v ISS Property Services Pty Ltd [2020] FWC 1340 are apposite:

The reality for companies in the business of supplying labour is that they frequently have little if any control over the workplaces at which their employees are placed and the rights of such Companies in circumstances where a client seeks the removal of an employee are limited. However, this is not a basis upon which companies in the business of supplying labour to clients can abrogate responsibility for treating employees fairly when dismissal is the result of removal from a particular site and the fairness of the dismissal is considered with reference to the matters in s 387 of the Act.[2]

... where an employee who has been placed in the premises of a third party has been dismissed for reasons related to conduct, the employer of that person must have at least taken reasonable steps to investigate whether the conduct occurred and a failure to do so cannot be excused by the fact that a client formed the view that the conduct had occurred and that view was accepted by the employer without question. Where there is such a failure the result may be that the Commission is unable to be satisfied to the required standard that there was a valid reason for dismissal.[3]

• [23] In this matter, I am not considering whether the dismissal of Ms Kirdar by Hays was harsh, unjust or unreasonable as the application was made against the respondent, National Australia Bank. Ms Kirdar may wish to consider whether she wishes to make an application against Hays. In those circumstances, her application will be out of time and the Commission will need to decide whether to allow a further period for the application to be made if it can be satisfied that there are exceptional circumstances taking into account the factors in s 394(3) of the Act.

• [24] As I have found that Ms Kirdar was not an employee of the respondent, National Australia Bank, it follows that her application must be dismissed.

• [25] I order that the application for an unfair dismissal remedy under matter number U2025/4366 filed by Ms Melis Kirdar on 9 April 2025 be dismissed.

Ms K Gardner for National Australia Bank Limited (the respondent)

[1] See Sayer v Melsteel Pty Ltd [2011] FWAFB 7498

[2] Stevens v ISS Property Services Pty Ltd [2020] FWC 1340, at [12]

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