Ullah v OM Security Pty Ltd [2025] FCA 1347

1. The applicant seeks orders for compensation pursuant to s 545 and s 550 of the FW Act, the imposition of a pecuniary penalty under s 546 and the payment of monetary damages to the Commonwealth pursuant to s 539, s 545 and s 550 of the FW Act and costs against all respondents, including Meriton.

(1) A person must not take adverse action against another person:

(a) because the other person:

(i) has a workplace right; or

(ii) has, or has not, exercised a workplace right; or

(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b) to prevent the exercise of a workplace right by the other person.

An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.

1. The adverse action advanced by the applicant in his s 340 claim against Meriton is his dismissal for exercising his workplace right in s 352 not to be dismissed because he was temporarily absent from work because of illness or injury.

1. The applicant submits that Meriton was relevantly his employer for the purposes of s 340 and s 352 of the FW Act because there was an implied contract of employment between the applicant and Meriton on a "pro hac vice basis". The applicant submits by reference to several authorities, including the decision of the New South Wales Court of Appeal in Mt Owen Pty Ltd v Parks (2023) 324 IR 34; [2023] NSWCA 77, that a contract of employment may not be determinative where the services of an employee have been transferred to a third party, such that the third party may be liable as an "employer pro hac vice".
2. Relatedly, the applicant submits that Meriton was a surrogate or deemed temporary employer for the purposes of his dismissal for exercising a workplace right. The specific basis on which these submissions were advanced was not readily apparent but it appeared to be essentially on the basis that Meriton was an "employer pro hac vice" or a surrogate or deemed temporary employer of the applicant because it operated the Altitude Meriton Parramatta and contracted OM Security to provide security services, including concierge security, and Hayden Thomas gave instructions from time to time to the applicant.

1. I am satisfied that the s 340 and s 352 of the FW Act claims pleaded against Meriton are misconceived and have no reasonable prospects of success.
2. First, and most fundamentally, this Court has no jurisdiction to determine the claims.
3. Section 365 of the FW Act relevantly provides that if a person has been dismissed in contravention of Part 3-1 of the FW Act, the person "may apply" to the Fair Work Commission (FWC) to deal with the dispute. Sections 340 and 352 of the FW Act fall within Part 3-1.
4. Section 366(1) of the FW Act provides that an application under s 365 must be made within 21 days after the dismissal takes effect or such further period as the FWC may allow under s 366(2).
5. Section 368 of the FW Act provides that the FWC must deal with a dispute notified under s 365, other than by arbitration, but s 368(3)(a) provides that if the FWC is satisfied that all reasonable attempts to resolve the dispute, other than by arbitration, have been or are likely to be unsuccessful, it must issue a certificate to the that effect (FWC Certificate).
6. In turn, s 370 of the FW Act relevantly provides that if a person "is entitled" to apply to the FWC to deal with a dispute under s 365, the person must not make a general protections claim to this Court in relation to the dispute unless the FWC has issued a FWC Certificate in relation to the dispute.
7. The applicant has not obtained a FWC Certificate in relation to the s 340 and s 352 of the FW Act claims that he has sought to advance in the FASOC against Meriton.
8. Second, the basis on which Meriton is alleged to have been an "employer pro hac vice" or a surrogate or deemed a temporary employer of the applicant has not been pleaded. Moreover, the applicant expressly pleads in the FASOC at [60] that OM Security was the employer of the applicant based on the matters alleged in the FASOC at [9] to [30], and the requirement in s 15AA of the FW Act to consider evidence of the "real substance, practical reality and true nature of the relationship" in determining whether a person is to be classified as an employee.
9. Third, as explained by the New South Wales Court of Appeal in Mt Owen at [32]-[33], the pro hac vice principle permits a Court to hold that a third party, rather than the employer of a person, is vicariously liable for a negligent act of an employee, where the services of that employee have been transferred to the third party. It is directed at rendering a person other than an employer liable for the negligent act of the employee, not making the third party an employer of the employee for the purposes of the FW Act or for any other reason.
10. Fourth, the relevant employer for the purposes of the s 340 and s 352 of the FW Act claims advanced by the applicant in the FASOC is the employer who dismissed the applicant. The applicant's case, as pleaded in the FASOC, is advanced on the basis that Sahil Sharma told him on 4 January 2025 that "If you take time off and go home, you won't receive any pay, and you won't get any work". On no plausible view, nor has it been alleged, that Sahil Sharma was an employee or agent of Meriton.
11. Fifth, and relatedly, the conduct of Meriton relied upon by the applicant in his s 550 of the FW Act claim against Meriton is the "instruction" or "direction" given by Hayden Thomas to Pawan Mishra, Sahil Sharma and Sachin Sharma to "remove Fahad" from the Altitude Meriton Parramatta. Even if it were assumed that the language of "I think it would be in everyones best interests" could be construed as an "instruction" or "direction", the giving of the instruction is antithetical to Meriton being in any relevant sense the employer of the applicant. If Meriton were the employer of the applicant, it would make little sense for it to be "instructing" a third party to remove their own employee from a workplace.
12. Sixth, the alleged "direction" or "instruction" given by Hayden Thomas was only to "remove Fahad from [the] building", not to dismiss him or otherwise terminate his employment.
13. For these reasons, I have concluded that the s 340 and s 352 of the FW Act claims sought to be advanced by the applicant against Meriton have no reasonable prospects of success.

(1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.

(2) A person is involved in a contravention of a civil remedy provision if, and only if, the person:

(a) has aided, abetted, counselled or procured the contravention; or

(b) has induced the contravention, whether by threats or promises or otherwise; or

(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or

(d) has conspired with others to effect the contravention.

1. An allegation that a person is knowingly concerned in a contravention, such as for the purposes of s 550(2)(c) of the FW Act, has been said to be a serious allegation, akin to a pleading of dishonesty: Australian Rail, Tram and Bus Industry Union v Railtrain Pty Ltd [2019] FCA 1740 at [12] (Flick J) citing Stefanovski v Digital Central Australia (Assets) Pty Ltd [2018] FCAFC 31; (2018) 368 ALR 607 at 627 (McKerracher, Robertson and Derrington JJ).
2. In order for a person to be knowingly concerned in a contravention of the FW Act, a person must be an intentional participant, with actual, not imputed, knowledge of the essential elements constituting the contravention: Fair Work Ombudsman v South Jin Pty Ltd [2015] FCA 1456 at [229]- [230] (White J) citing Yorke v Lucas (1985) 158 CLR 661 at 670 (Mason CJ, Wilson, Deane and Dawson JJ) and Young Investments Group Pty Ltd v Mann [2012] FCAFC 107; (2012) 293 ALR 537 at 541 (Emmett, Bennett and McKerracher JJ).
3. There must be a practical connection between the conduct of the person and the alleged contravention: Qantas Airways Ltd v Transports Workers' Union of Australia [2011] FCA 470; (2011) 280 ALR 503 at 567 (Moore J).
4. The requisite actual knowledge must be present at the time of the contravention, and a later acquisition of knowledge of the essential matters is not sufficient: South Jin at [234] (White J).

1. The applicant submits that Meriton was involved in the alleged contravention by OM Security of s 340 and s 352 of the FW Act because of the "instruction" given by Hayden Thomas to Sahil Sharma that the applicant be "removed" from the site.
2. The applicant submits that although the "instruction" to remove him was given by Hayden Thomas to Sahil Sharma on 2 January 2025, he was not made aware of the instruction until 4 January 2025.
3. The applicant accepts that his health deteriorated, and he suffered his injury at the time that he was made aware of the instruction given by Hayden Thomas to Sahil Sharma. The applicant submits, however, that he had spoken to Hayden Thomas on the evening of 31 December 2024, immediately after the Incident, and told him that he was "not feeling comfortable" and Hayden Thomas responded that he should call the police "anytime if you are not feeling comfortable, and you fear for your safety". Given these alleged communications, the applicant then submits that at the time that Hayden Thomas gave the "instruction" to Sahil Sharma to remove him off the site, Hayden Thomas was aware that the applicant (a) was suffering significant personal and emotional distress because of the Incident, and (b) would be looking to take some leave to recover from that distress.

1. I am also satisfied that the s 550 of the FW Act claim pleaded against Meriton is misconceived and has no reasonable prospects of success.
2. First, the s 550 of the FW Act claim is advanced on the basis of an alleged participation in the pleaded contraventions by OM Security of s 340 and s 352. As explained at [57]-[62] above, the Court has no jurisdiction to determine those claims because the applicant has not obtained a FWC Certificate.
3. Second, a person cannot be found to have been involved in a contravention of a provision of the FW Act pursuant to s 550 of the FW Act unless they had knowledge of each of the elements of the contravention. In this case, the critical element to the s 340 and s 352 claims alleged against OM Security is the requirement to establish that the applicant was dismissed because he was temporarily absent from work because of illness or injury.
4. The insurmountable hurdle that this presents for the applicant is that at the time the alleged instruction was given by Hayden Thomas to Sahil Sharma on 2 January 2025, the applicant had not suffered the alleged injury because he had not yet been told of the alleged instruction and, more fundamentally, on no view at the time Hayden Thomas gave the alleged instruction, was the applicant temporarily absent from work because of illness or injury. The applicant had not exercised, or even sought to exercise, his workplace right to take sick leave until 4 January 2025.
5. Any communication of distress made by the applicant to Hayden Thomas on the evening of 31 December 2024 could not relevantly constitute knowledge by Hayden Thomas and, in turn, Meriton, that the applicant was absent from work because of illness or injury for the purposes of establishing a knowingly concerned involvement by Meriton in the alleged s 340 and s 352 contraventions by OM Security. Section 352 does not extend to the dismissal of an employee on the basis that an employee communicated to their employer that they were distressed. The employee must be temporarily absent from work in order for s 352 to be engaged.
6. Third, and relatedly, the alleged instruction was expressly stated by Hayden Thomas in the 2 January Email to have been given because "I think it would be in everyones best interests to remove Fahad from [the] building" in the context of the attached Resident's second complaint. I infer that a removal in "everyones best interests" also encompasses the best interests of the applicant, given the complaints made by the Resident could not conceivably be characterised as a dismissal based on a temporary absence of work because of illness or injury.

1. The power to dismiss a proceeding against a party summarily must always be exercised with exceptional caution. It is also necessary in this case to take care to ensure that the applicant, by reason of his status as a litigant in person, is not deprived of the opportunity to have his claims, if any, determined according to law.
2. Notwithstanding these considerations, however, I have concluded that the proceeding against Meriton should be summarily dismissed.
3. I am satisfied for the reasons advanced above that the causes of action sought to be advanced by the applicant against Meriton are not viable and have no reasonable prospects of success. Their prospects for success do not turn on any substantive disputed question of fact or any unsettled legal principle. Pleaded contentions that Meriton was an "employer pro hac vice" or a surrogate or deemed temporary employer are divorced from any substantive factual context and cannot give rise to factual disputes that can plausibly be described as significant, substantial, plausible, or weighty. Moreover, those contentions must be weighed against the balance of the contentions advanced by the applicant.
4. In this case, the applicant's pleaded material facts are directed at establishing that OM Security was the employer of the applicant. I accept that notwithstanding the present infelicities with the allegations advanced against OM Security in the FASOC and the contended, but as yet unpleaded claim by OM Security that the applicant was employed by Home Security, there is a real substantive factual dispute as to which of them employed the applicant. The proceeding against OM Security has not been summarily dismissed, and leave has been given to proceed against Home Security, as a company in liquidation. Subject to the pleading defects in the FASOC being remedied, these claims can proceed to a final hearing.
5. In the event that it was successful, Meriton seeks a costs order against the applicant pursuant to s 570(2) of the FW Act. I am not satisfied, however, given the applicant is a litigant in person seeking to advance claims in a relatively complex statutory framework against multiple parties, that the applicant instituted the proceedings against Meriton and Gallagher Bassett vexatiously, without reasonable cause or unreasonably.

1. The applicant alleges in the FASOC at [69(a)] that Gallagher Bassett contravened s 357(1) of the FW Act by misrepresenting his employment status as an independent contractor. The applicant's particulars of that contravention include:

The fourth respondent deliberately made false representations about the applicant being an independent contractor of the second respondent to refuse paying him the entitlements under the workers compensation.

1. The applicant also advances a claim that Gallagher Bassett was an accessory to the contraventions by OM Security and thereby contravened s 550 of the FW Act. The applicant alleges in the FASOC at [69(d)] that Gallagher Bassett:

...could be an accessory to the employer First Respondent's violations, because both parties share mutual interests as being an insurer and insured thus potentially breaching sections 546 and 550. Involvement in a contravention is treated similarly to an actual violation of the Fair Work Act.

1. The applicant seeks orders for compensation pursuant to s 545 and s 550 of the FW Act, the imposition of a pecuniary penalty under s 546, the payment of monetary damages to the Commonwealth pursuant to s 539, s 545 and s 550 and costs against all respondents, including Gallagher Bassett.

(1) A person (the employer) that employs, or proposes to employ, an individual must not represent to the individual that the contract of employment under which the individual is, or would be, employed by the employer is a contract for services under which the individual performs, or would perform, work as an independent contractor.

(2) Subsection (1) does not apply if the employer proves that, when the representation was made, the employer reasonably believed that the contract was a contract for services.

(3) In determining, for the purpose of subsection (2), whether the employer's belief was reasonable:

(a) regard must be had to the size and nature of the employer's enterprise; and

(b) regard may be had to any other relevant matters.

[Notes omitted.]

1. The applicant submits that a person, other than an employer, may contravene s 357(1) of the FW Act if it made a representation to an individual that the contract of employment under which the individual is, or would be, employed by the employer is a contract for services under which the individual performs, or would perform, work as an independent contractor.
2. The applicant submits that this construction was supported by the reasoning of the High Court in Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd (2015) 256 CLR 137; [2015] HCA 45, in particular, the following statements at [16]:

To confine the prohibition to a representation that the contract under which the employee performs or would perform work as an independent contractor is a contract for services with the employer would result in s 357(1) doing little to achieve its evident purpose within the scheme of Pt 3-1. That purpose is to protect an individual who is in truth an employee from being misled by his or her employer about his or her employment status. It is the status of an employee which attracts the existence of workplace rights.

1. The applicant submits that the reference by the Court to what he describes as "the contract of employment under which the individual is or would be employed" was a reference to the object of the representation and not the content of the prohibited representation. He then submits that it followed that if any person made a misrepresentation as to the object of the section, namely the contract of employment, the person would contravene s 357(1) of the FW Act.

1. The construction of s 357(1) of the FW Act advanced by the applicant is untenable. It finds no support in the text of the section, its context or purpose. Nor does it find any support in the reasoning of the High Court in Quest South Perth.
2. Textually, s 357(1) of the FW Act is directed at a representation made by an employer of a person about the character of the contract under which that person is employed by the employer. A third party to the contract pursuant to which a person performs services cannot be an employer of that person for the purposes of s 357(1).
3. The High Court in Quest South Perth rejected the Full Court's construction that s 357(1) was confined to a representation that the contract under which the employee performs or would perform work as an independent contractor is a contract for services. As their Honours explained at [16], the purpose of the scheme behind Pt 3-1 was to protect a person who is in truth an employee from being misled by "his or her employer" about their employment status. Nor does the following observation that it was the "status of an employee which attracts the existence of workplace rights" in any sense provide any support for the proposition that the High Court was construing s 357(1) as extending to representations made by persons other than an employer of the person to whom the representation was made.
4. Further, the High Court in Quest South Perth was concerned with the operation of s 357(1) in a tripartite situation. As the Court stated at [17], to confine the provision to a representation that the contract under which the employee performs or would perform work as an independent contractor to a contract for services with the employer would give the provision a capricious operation because:

An employer would be liable to pecuniary penalty if the employer said to an employee "you are employed by me as an independent contractor". The same employer would act with impunity if the employer said to the same employee "you are employed by X as an independent contractor". That would be so even if X were entirely fictitious. Either way, the employee would be misled by the employer to think that the employee was an independent contractor, and the extent of the practical denial of workplace rights would be the same. ...

1. Again, it is clear that the High Court was confining the representation to a representation made by the employer, not a third party.
2. For these reasons, I have concluded that the s 357(1) claim sought to be advanced by the applicant against Gallagher Bassett has no reasonable prospects of success.

1. The applicant submits in the alternative that Gallagher Bassett can be held liable under s 550 of the FW Act as an accessory for the alleged misrepresentations made by the OM Security in contravention of s 357(1) as to his employment status.
2. The claim is fundamentally misconceived. As explained at [73] above, accessorial liability requires proof that a person had actual knowledge of the essential matters constituting the contravention at the time of the alleged contravention.
3. First, on the applicant's case, he was dismissed on 6 January 2025, but Gallagher Bassett had no involvement in the matters raised by the applicant until it received the claims notice on 6 January 2025 and had no contact with the applicant until 7 and 8 January 2025. It is therefore logically impossible for Gallagher Bassett to have had knowledge or involvement in any misrepresentation as to the applicants' employment status during the time that he was alleged to have been an employee of OM Security, or alternatively Home Security or Meriton.
4. Second, the conduct of Gallagher Bassett was limited to investigating the claims notice and then finding, in effect, that there was insufficient evidence to indicate that the applicant was a worker or deemed worker of OM Security. The applicant may disagree with the determination made by Gallagher Bassett as a claims manager, but that cannot constitute knowing involvement by it in any alleged misrepresentations made by any purported employer of the applicant as to his employment status prior to his dismissal.
5. The s 550 claim sought to be advanced by the applicant, therefore, has no reasonable prospects of success.

1. Given that neither of the claims sought to be advanced by the applicant against Gallagher Bassett has any reasonable prospects of success, the proceeding against it should be summarily dismissed.
2. The claims suffer from fundamental defects, not pleading infelicities. I accept the applicant is a litigant in person and I must take care to ensure that the applicant, by reason of his status as a litigant in person, is not deprived of the opportunity to have his claims, if any, against Gallagher Bassett determined according to law. I am satisfied, however, that no amount of pleading refinements can cure those defects.
3. Further, as I explain at [86] above, subject to the pleading defects in the FASOC being remedied and the applicant obtaining a FWC Certificate, the claims that the applicant makes against OM Security and in turn OM Security makes against Home Security can proceed to a final hearing.
4. Gallagher Bassett does not seek a costs order against the applicant pursuant to s 570(2) of the FW Act.

1. For the foregoing reasons, orders are to be made dismissing the proceedings against Meriton and Gallagher Bassett.
2. There is to be no order as to costs.

I certify that the preceding one hundred and twelve (112) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Halley.

GALLAGHER BASSETT SERVICES PTY LTD ACN 009 778 018