Application to deal with contraventions involving dismissal.

[1] On 16 July 2010, Mr David Tse ("the Applicant") made application seeking Fair Work Australia to deal with a General Protections Dispute.

[2] The Respondent Employer to the application is Chandler MacLeod Pty Ltd ("the Employer").

[3] The Applicant alleges that the Employer has taken adverse action against him by dismissing him in contravention of s.340 of the Fair Work Act 2009 ("the Act") because he has, and has, exercised a workplace right.

[4] Pursuant to s.368(1) of the Act, a conference was conducted to deal with the dispute on 4 October 2010.

[5] At the conference both parties had legal representation.

[6] Conference proceedings, by their nature are intended to be informal, expeditious and on a "without prejudice basis".

[7] For a certificate to be issued by the Tribunal in accordance with s.369 of the Act, it is necessary that the prerequisites in s.365 of the Act be met. The prerequisites are essentially:

• the person was dismissed in contravention of Part 3-1 of the Act.

[8] Consequently, it is not possible on all occasions for the Tribunal to be satisfied, in conference, that the conditions set out in s.365 of the Act have been met; this is one of those occasions.

[9] On 5 October 2010, I issued a Statement and Directions to the Applicant and the Employer. The Directions required both parties to address the questions of whether:

• the Applicant was dismissed by the Employer; and the dismissal, if it occurred, was in contravention of Part 3-1 of the Act.

[10] The Employer provided its submission on 11 October 2010. The Applicant provided its submission on 19 October 2010.

[11] In April 2009, the Applicant responded to an advertisement by the Employer for production chefs who would be deployed to an airline company at Perth International Airport. The Applicant was interviewed, considered suitable, signed an employment contract and commenced employment with Q Catering on or around 27 April 2010.

[12] As part of the selection process, the Applicant was interviewed by Mr Erwin Schick who is the Catering Production Manager of Q Catering. The Applicant was known to Mr Schick, as both had previously worked together at the Burswood Entertainment Complex.

[13] From, at least, 27 December 2009, the Applicant became involved, either by observation or directly, in workplace behavioural issues.

[14] Following an anonymous report by the Applicant alleging a "verbal assault" by one employee upon another in December 2009, Q Catering carried out an investigation which was unable to reach any conclusion regarding the allegations, due to a lack of witnesses.

[15] In March 2010, the Applicant reported to Mr Schick another incident involving himself, and the same employee who carried out the "verbal assault" referred to in paragraph [14].

[16] Further, in March 2010, an incident between Mr Tse and another employee occurred in which the Applicant made his own notes but did not report the incident either to his Employer or Q Catering.

[17] In April 2010, there was another incident between Mr Tse and the employee referred to in paragraph [16].

[18] On 16 May 2010, the Applicant was involved in a further incident with the employee referred to in paragraphs [14] and [15]. Mr Tse's supervisor, who had been advised of the incident by another employee, raised the issue with the Applicant -- this led to a further incident, of which the content is contested, between Mr Tse and the supervisor.

[19] The supervisor contacted Mr Tse's Employer, requesting that he not be assigned again to Q Catering.

[20] Mr Tse's rostered shift was cancelled on the following day.

[21] On 17 May 2010, the Employer attempted to contact Mr Tse to discuss the incident on 16 May 2010 and Q Catering's request that he not be assigned again to its workplace.

[22] As the Employer was unable to contact Mr Tse on 17 May 2010, the following email was forwarded to Mr Tse:

As of today your placement at Q Catering has been closed. We will contact you to offer you any suitable work when it becomes available.

[23] For completeness, it should be noted that Mr Tse during his period of employment, raised issues regarding overtime payments, rostering arrangements and his inability to utilise his full range of skills.

[24] The Employer operates a labour hire and recruitment business and enters into labour hire contracts with customers to supply labour.

[25] The Employer has a labour hire contract with Q Catering.

[26] On 14 April 2009, the Applicant entered into a contract of employment with the Employer.

[27] The relevant parts of the Applicant's contract of employment are as follows:

"My employment with Chandler Macleod is as a casual labour-hire employee, and as such I may from time to time be placed on assignment to provide services for the benefits of customers of Chandler Macleod (each an "Assignment" with a "Customer"), with each sift constituting a discrete period of employment".

"I understand that Chandler Macleod does not control the length of any Assignment and I accept that, while Chandler Macleod may indicate the potential length of an Assignment in good faith, the Customer may vary the length of the Assignment or terminate my attendance at its absolute discretion".

"I accept that if a Customer varies the length of an assignment period or terminates my attendance at an assignment as contemplated in clause 2, Chandler Macleod has the right, at its discretion, to discontinue my employment".

[28] Following an incident between the Applicant and another employee, Mr Tse was approached by a Q Catering supervisor to discuss the incident. The Respondent asserts that the Applicant admitted to what had occurred but subsequently became agitated and shouted at the supervisor.

[29] As a result of the behaviour towards the supervisor, Mr Tse was asked to leave the premises immediately. The supervisor reported the incident to the Employer and asked that Mr Tse not be assigned further to Q Catering.

[30] In accordance with his contract of employment and the determination of Q Catering, Mr Tse's was advised by email, on 18 May 2010, that his assignment with Q Catering had ceased. Further, that Mr Tse would be offered suitable work when it became available.

[31] Finally, the Employer asserts it has attempted to contact Mr Tse by telephone concerning further assignments. As a result of no response to telephone calls, the Employer emailed Mr Tse on 26 July, 4 August and 3 September 2010 regarding potential assignments; Mr Tse has not responded. The Employer is committed to contacting Mr Tse further should suitable positions arise for potential assignments.

[32] For Fair Work Australia to deal with the application, pursuant to s.365 of the Act, it is necessary that Mr Tse be dismissed and the dismissal was in contravention of Part 3-1 of the Act. As the Applicant was not dismissed, it is not necessary, under s.365 of the Act to enquire into whether the dismissal was in contravention of Part 3-1 of the Act. However, the Respondent submits, even if Mr Tse relied upon s.372 of the Act, there was no adverse action as the decision to cease providing Mr Tse services to Q Catering was consistent with his contract of employment and not based on workplace rights, but due to his own behaviour at the workplace.

[33] The Applicant responded to an advertisement by the Employer for production chefs for an airline company located at Perth International Airport.

[34] Mr Tse submits, "by way of clarification" that:

"The Applicant did not attend an interview with the Respondent with a view to being put on the Respondent's books for any assignment that may come up from time to time with the Respondent. Notwithstanding that, the Applicant signed an employment agreement with the Respondent, in substance the Applicant was employed primarily for the position at Q Catering".

[35] The Applicant became aware of what he describes as "incidents" which included staff members regularly using offensive language and workplace bullying. The Applicant was not aware of staff being counselled or disciplined regarding these incidents.

[36] The Applicant made and lodged an anonymous complaint with Q Catering on 27 September 2009. The complaint was investigated and during the investigation, Mr Tse revealed that he was the author of the anonymous complaint. The investigation was completed in March 2010.

[37] The Applicant was involved in two incidents in March 2010. In the first incident, the Applicant reported the matter to his supervisor but did not submit a formal complaint. The Applicant was advised by the supervisor that he would speak to the other parties involved in the incident.

[38] In the second incident, the Applicant made his own notes but did not report the matter as he, "didn't see that previous incidents were properly resolved".

[39] On 10 April 2010, the Applicant was involved in a further incident. Some of the content of the incident are disputed, but it was reported to Mr Tse's supervisor.

[40] Mr Tse reported to the Employer on 20 April 2010 the incident which occurred on 10 April 2010 alleging bullying, discrimination and harassment. The Applicant stated that should the Employer not deal with his allegations, he would have to seek legal advice. The Applicant found it prudent to have legal representation due to alleged comments by the Employer's representative about his employment status, rumours in the workplace that his employment had been terminated and rostering issues.

[41] The Applicant asserts that neither Q Catering nor the Employer properly investigated the incidents.

[42] The Applicant concedes that, in the incident which led to his last work day with Q Catering, he "swore under his breath".

[43] Following this incident, Mr Tse denies shouting in his discussion with the supervisor, but "may have raised his voice slightly". Mr Tse agrees that some parts of the conversation were as stated by the Employer but denies other statements alleged to have been made; in particular that he had "gone too far" and being asked to leave the premises.

[44] On receiving the email in paragraph [22], the Applicant responded within 15 minutes to the effect that he understood that his assignment had been terminated at Q Catering

[45] The Applicant rejects the Employer's assertion that he remains an employee and points out that he was only provided with potential assignments after is application to Fair Work Australia and these do not match his skill set.

[46] The Applicant entered into a contract with the Employer on or about 14 April 2009.

[47] From conference proceedings and written submissions, nothing was put to the Tribunal to dispute the fact that the contract of employment was entered into freely and genuinely consented to by both parties. I note that the Applicant now advises that he did not attend the interview with the Employer for "any assignment that may come up from time to time with the Respondent". I consider this statement more a review of the Applicant's position at the time of entering into the contract of employment, rather than a clarification. Further, if Mr Tse entered into the contract of employment for the purpose of assignment to Q Catering only, this position sits at odds with his statement in his application to Fair Work Australia when he states:

"The Respondent has not offered to the Applicant any further work.

Therefore, as the Respondent has terminated the Applicant's "Assignment" with Q Catering and has since not offered to the Applicant any further work, the Respondent has effectively dismissed the Applicant".

[48] I find that the Applicant entered into a contract of employment on an unqualified acceptance basis. The terms of the contract are clear and include:

• his employment is as a casual labour hire employee;

• his employment was by way of Assignment to clients of the Employer;

• the length of any Assignment was uncertain and at the absolute discretion of clients of the Employer;

• notwithstanding continuation of a labour hire contract between the Employer and its client, the client can terminate the Assignment of individual employees at its absolute discretion; and

• should the Employer's contract with its client cease or vary, or a client terminates the Assignment of an individual employee, the Employer can terminate the employment of that employee.

[49] Consistent with these expressed terms of Mr Tse's contract, I find that Q Catering requested the Employer to no longer assign the Applicant to its work area. Having made the request, the Employer advised Mr Tse that his assignment to Q Catering had ceased and would contact him when suitable work becomes available. While such a phrase is full of uncertainty, and could be interpreted as disingenuous and a meaningless attempt to pacify the Applicant, the Employer could have exercised its discretion to discontinue its employment relationship with Mr Tse immediately.

[50] The Applicant has not contested the Employer's assertion that since the cessation of Mr Tse's assignment, it has, "attempted to telephone Mr Tse on a number of occasions about further assignments [based on his skill set] but since Mr Tse has not responded to these telephone calls CMG [the Employer] has been emailing Mr Tse these assignments".

[51] Having considered all the above matters, I find that Mr Tse was not dismissed from his employment but had his assignment with Q Catering discontinued in accordance with the express provisions of his contract of employment.

[52] Further, given the nature of Mr Tse's contract of employment, I find that it continues to exist, albeit only enlivened when a mutually tripartite (Employer, client and employee) assignment is found.

Contravention of Part 3-1 of the Act

[53] In view of my findings above, it is unnecessary to consider whether there has been a contravention of Part 3-1 of the Act.

[54] Section 365 is constructed in such a way for it to be operative only when certain conditions are met. The section is only operative "if" the person has been "dismissed" "and" "the person was dismissed in contravention of this Part". The ordinary meaning of "and" in s.365 means that for Mr Tse's application to be effected, it is necessary for both conditions (dismissed and in contravention of Part 3-1 of the Act) to be met. As a consequence of my finding that he has not been dismissed, one condition has not been met. Until this primary condition is satisfied, whether or not the second condition is satisfied, is irrelevant as it is necessary for both conditions to be satisfied to make s.365 operative and Mr Tse's application within jurisdiction.

[55] For the above reasons, I have concluded that as the provisions of s.365(a) of the Act have not been met, I am unable to issue a Certificate pursuant to s.369 of the Act.

[56] An Order will now be issued dismissing the application as the necessary jurisdictional conditions have not been met.

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