Fair Work Act 2009

s.365 - General protections

Application to deal with contraventions involving dismissal dismissal - jurisdictional objection - whether the applicant was dismissed from his employment - employee was not dismissed -application dismissed

• [1] On 23 September 2024, Sean Carpenter lodged with the Fair Work Commission an application for a general protections remedy.[1] He claimed that he had been dismissed by Global Management NSW Pty Ltd for raising questions as to his rates of pay.
• [2] Global objected to the application. It denied that it had dismissed Mr Carpenter. It asserted that its relationship with Mr Carpenter was ongoing.
• [3] I listed the matter for hearing of the jurisdictional objection and made directions that the parties file and serve evidence and submissions in anticipation of that hearing. The Commission sent the directions to the parties by email to the addresses that they had provided.

• [4] Mr Carpenter filed no material in response to the directions.
• [5] The matter came before me for hearing on 6 December 2024. Mr Carpenter did not appear. The Commission made several unsuccessful attempts to contact him by telephone and email. I determined to proceed with the hearing in his absence.
• [6] Having heard from Global, I found that the company had not dismissed Mr Carpenter. I ordered that the proceedings be dismissed. I stated that the reasons for my decision would follow.

• [8] I have derived the following facts from the material filed by Global. As Mr Carpenter did not engage with the proceedings, I have taken the evidence to be uncontroverted.
• [9] Global runs a labour hire business. It employed Mr Carpenter under a contract of employment that he signed on 25 July 2024. That contract provided that Global employed Mr Carpenter on a casual basis and would place him on "assignment" with clients of the business. Significantly for present purposes, the contract also provided that:

a) Global could change or terminate an assignment without reason; > > b) Mr Carpenter had no right to ongoing employment, or to continued engagement on a particular assignment; and > > c) the termination of an assignment did not constitute the termination of Mr Carpenter's employment with Global.

• [10] Global assigned Mr Carpenter to work in a client's warehouse. The assignment commenced on or about 29 July 2024.
• [11] On 14 September 2024 the client sent an email to Global. The email requested that Global inform Mr Carpenter that he would no longer be required. The email stated that he had been "inconsistent with performance and unreliable".
• [12] On receipt of the email, an employee of Global called Mr Carpenter. She informed him that he was no longer required by the client. She said that she would get "the office" to contact him to see if another role might be available for him.

• [13] Global has been unable to offer Mr Carpenter any further work since 14 September 2024 as it has no suitable opportunities for placement. He remains on Global's system as "active".

• [14] For Mr Carpenter to be entitled to make the general protections application he has brought, he must have been dismissed.[2] The Commission cannot deal with the application otherwise.[3] As Global contends that there was no dismissal, it gives rise to a dispute as to whether Mr Carpenter is entitled to make the application. I must resolve that dispute to determine whether the Commission can exercise any of its powers to deal with the application.[4]
• [15] A dismissal may occur in one of two ways. First, where a person's employment with their employer is terminated on the employer's initiative.[5] A termination will be "on the employer's initiative" if it is brought about by an employer without the employee's agreement. The question is whether an action on the part of the employer was the principal contributing factor which resulted, directly or consequentially, in the termination of the employment.[6]
• [16] Second, where the person has resigned from their employment, but was forced to do so because of conduct, or a course of conduct, engaged in by their employer.[7] There was no suggestion that Mr Carpenter resigned.
• [17] In this case, the question was whether the Global's termination of Mr Carpenter's assignment with the client also terminated the employment. I was satisfied that it did not.

• [18] In some cases, the employment relationship between a labour hire company and an employee may continue during periods where the employee is not placed at a client company. This will depend on the contractual arrangements between the parties and the factual matrix in which they operate.[8]

• [19] In the present case, the contract between Mr Carpenter and Global expressly contemplated the continuation of the employment relationship despite the termination of an assignment. The ongoing nature of the relationship was evidenced by Mr Carpenter being told on 14 September 2024 that Global would explore other opportunities for him and him remaining "active" on Global's system.[9] The fact that Global has been unable to secure other work for Mr Carpenter is reflective both of the nature of a labour hire business and his casual status. It does not itself lead to the conclusion that the employment relationship has come to an end.

• [20] For these reasons, I was satisfied at the conclusion of the hearing that Global had not dismissed Mr Carpenter. I made a finding to that effect.

• [21] The consequence of that finding was that Mr Carpenter was not entitled to bring these proceedings. The only appropriate order for me to make was that the proceedings be dismissed. I made that order.

[1] The application was brought under s 365 of the Fair Work Act 2009 ("Act"). Unless otherwise stated, all references in this decision to legislative provisions are to provisions of the Act

[3] Coles Supply Chain Pty Ltd v Milford (2020) 300 IR 146; [2020] FCAFC 152 at [51]

[4] Coles Supply Chain Pty Ltd v Milford (2020) 300 IR 146; [2020] FCAFC 152 at [67]. See also Lipa Pharmaceuticals Ltd v Mariam Jarouche (2023) 324 IR 375; [2023] FWCFB 101 at [4].

[6]Saeid Khayam v Navitas English Pty Ltd [2017] FWCFB 5162 at [75], citing Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 625; (1995) 62 IR 200

[7] Section 386(1)(b). This provision is intended to reflect the common law concept of constructive dismissal: Explanatory Memorandum for the Fair Work Bill at par 1530; City of Sydney RSL & Community Club Limited v Roxana Balgowan [2018] FWCFB 5 at [9] and [13]

[8] Kim Star v WorkPac Pty Ltd T/A WorkPac Group [2018] FWC 4991 at [69]

[9] See Wendy Bradford v Toll Personnel Pty Ltd T/A Toll Ipec [2013] FWC 1062 at [57]

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