1
Fair Work Act 2009
s 604—Appeal of decision
Spinifex Australia Pty Ltd t/a Spinifex Recruiting
v
Patrice Tait
(C2018/3537)
VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT SAMS
COMMISSIONER SIMPSON
SYDNEY, 30 OCTOBER 2018
Appeal against decisions [2018] FWC 1363 and [2018] FWC 3686 of Senior Deputy
President Hamberger at Sydney on 13 March 2018 and 21 June 2018 in matter number
U2017/12212.
Introduction
[1] Spinifex Australia Pty Ltd t/a Spinifex Recruiting (the ‘appellant’) seeks permission to
appeal and appeal of two decisions (the ‘Decisions’) and Order1 of Senior Deputy President
Hamberger issued on 13 March 20182 and on 21 June 2018.3 The appeal was lodged on 28
June 2018. Both Decisions related to an application for an unfair dismissal remedy filed by
Ms Patrice Tait (the ‘respondent’) in respect to her dismissal by the appellant on 26 October
2017.
[2] In the jurisdictional decision, the Senior Deputy President found that the respondent
had completed the minimum employment period with the appellant and dismissed the
appellant’s objection in relation to that issue. In the merits and compensation decision the
Senior Deputy President found that the respondent was unfairly dismissed by the appellant,
1 PR608347 (Order).
2 [2018] FWC 1363 (the jurisdictional decision).
3 [2018] FWC 3686 (the merits and compensation decision).
[2018] FWCFB 6267
DECISION
E AUSTRALIA FairWork Commission
[2018] FWCFB 6267
2
and that reinstatement would be inappropriate. Accordingly, the appellant was ordered to pay
$15,000 in compensation to the respondent.4
[3] An appeal under s 604 of the Fair Work Act 2009 (Cth) (the ‘Act’) is an appeal by way
of rehearing and the Commission’s powers on appeal are only exercisable if there is an error
on the part of the primary decision maker.5 There is no right to appeal, and an appeal may
only be made with the permission of the Commission.
[4] The matter was listed for hearing in respect of both permission to appeal and the
merits of the appeal. We note that on 2 July 2018, Vice President Catanzariti stayed the
Senior Deputy President’s merits and compensation decision and Order of 21 June 2018,
pending the determination of the appeal or until further order of the Commission.
[5] During the course of the stay proceeding, the Vice President raised with the appellant
that its appeal in respect to the Senior Deputy President’s jurisdictional decision of 13 March
2018 was out of time and therefore it would be necessary to make a formal application to
amend the notice of appeal, with the appellant being required to file written submissions in
support of an extension of time being granted. Such an application would then be considered
by the Full Bench in the substantive hearing.
[6] The appeal was listed for hearing before the Full Bench in Sydney on 7 August 2018.
Mr R Reitano of Counsel with Mr P Macken solicitor instructing, appeared for the appellant
with permission having been granted for the appellant to be represented by a lawyer, pursuant
to s 596 of the Act. The respondent, Ms Tait continued her appearance, unrepresented.
Extension of time application
[7] Having considered the parties’ written submissions, the Full Bench at the outset of the
hearing refused the appellant’s application to extend time to appeal the Senior Deputy
President’s jurisdictional decision. We indicated we would publish our reasons concurrently
with our decision on the appeal generally. These are our reasons.
4 PR608347.
5 Coal and Allied Operations Pty Limited Australian Industrial Relations Commission and others (2000) 203 CLR 194; 99 IR
309 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
[2018] FWCFB 6267
3
Submissions of the parties
[8] The appellant correctly identified the relevant matters the Commission is required to
take into account under Rule 56(2)(c) of the Fair Work Commission Rules. These are:
a) whether there is a satisfactory reason for the delay;
b) the length of the delay;
c) the nature of the grounds of appeal and the likelihood that one, or more of
those grounds being upheld, if time was extended; and
d) any prejudice to the respondent if time were extended.6
[9] The appellant submitted that the Commission has long counselled against a party
aggrieved by interim or interlocutory decisions, appealing such a decision before a matter is
determined to finality;7 and that there is a public interest in discouraging appeals from
preliminary proceedings.8 Given these circumstances, it was reasonable that the appellant not
institute an appeal of the jurisdictional decision before the final decision. The appellant put
that while the delay in instituting the appeal against the Senior Deputy President’s
jurisdictional decision was a ‘matter of months’, this was explained by the completion of the
jurisdictional decision proceedings. Further, the appellant will establish that the jurisdictional
decision was erroneous and there was a distinct likelihood of it being set aside on appeal.
Finally, there was no prejudice on the part of the respondent, if time to appeal is extended.
[10] The respondent opposed the extension of time to allow the appeal on the basis that the
appellant has had more than enough time to lodge a Notice of Appeal, within 21 days or seek
an extension of the time at a much earlier time. The respondent believed that the appellant had
decided not to appeal the jurisdictional decision because it was certain it would be successful
in its appeal on the merits of her unfair dismissal claim.
6 See Mahmoud Dahbache v Prixcar Services Pty Ltd [2015] FWCFB 1227; Construction, Forestry, Mining and Energy
Union v Kestrel Coal Pty Ltd [2015] FWCFB 2206; Construction, Forestry, Mining and Energy Union v Broadspectrum
Australia Pty Ltd [2017] FWCFB 269; Jobs Australia v Mrs Donna Eland [2014] FWCFB 4822.
7 B. Hutton v Sykes Australia Pty Ltd [2014] FWCFB 3384.
8 Finance Sector Union of Australia v Comsec Trading Limited and Others PR945431; [2004] AIRC 337.
[2018] FWCFB 6267
4
[11] We have decided to refuse the appellant’s application to extend the time for the filing
of an appeal against the Senior Deputy President’s jurisdictional decision for three main
reasons.
[12] Firstly we reject the appellant’s submission that the Senior Deputy President’s
jurisdictional decision was in the nature of a preliminary or interlocutory decision. A decision
of the Commission on whether a dismissed employee has satisfied the minimum employment
period for the purposes of ss 382 and 383 of the Act is a fundamental prerequisite to the
exercise of the Commission’s jurisdiction which determines whether or not a dismissed
employee has been unfairly dismissed under s 385 of the Act. It is trite that if the dismissed
employee has not met the minimum employment period, then his/her unfair dismissal
application must be dismissed and that is the end of the matter. When viewed in this way, a
decision determining this question cannot be characterised as being of a preliminary or
interlocutory nature. This is so because a finding that an employee has not met the minimum
employment period will bring finality to the application and completely extinguish the
dismissed employee’s access to the Commission’s unfair dismissal jurisdiction. We would
add that it is difficult to reconcile the appellant’s submission that the appeal of the
jurisdictional decision has strong prospects of success, when the appellant decided not to
institute an appeal of that decision within time, as success at that early stage would have
brought finality.
[13] Secondly, we consider the delay in seeking to appeal the jurisdictional decision is
significant – 86 days.9 This factor tells against an extension of time being granted.
[14] Thirdly, there is no prejudice to either party if the extension of time is refused as there
is an obvious overlap in the decisions of the Senior Deputy President in respect to the
identification of the minimum employment period and the principal issue in the merits appeal
as to the Commission’s unfair dismissal jurisdiction in relation to employees engaged by
labour hire companies, under temporary employee agreements.
The appeal
[2018] FWCFB 6267
5
[15] As mentioned earlier, the Commission’s powers in relation to an appeal under s 604 of
the Act are only exercisable if there is error on the part of the primary decision maker. There
is no automatic right to appeal and an appeal may only be made with permission of the
Commission.
[16] The decision subject to appeal was made under Part 3-2 of the Act which relates to
unfair dismissal. Section 400(1) provides that permission to appeal must not be granted from
such a decision under Part 3-2 unless the Commission considers that it is in the public interest
to do so. Further, in such matters appeals on a question of fact may only be made on the
ground that the decision involved a “significant error of fact” (s 400(2)). In Coal & Allied
Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy
JJ agreed) characterised the test under s 400(1) as “a stringent one”.10 The task of assessing
whether the public interest test is met is a discretionary one involving a broad value
judgment.11 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission
identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issues of importance and
general application, or where there is a diversity of decisions at first instance so that
guidance from an appellate court is required, or where the decision at first instance
manifests an injustice, or the result is counter intuitive or that the legal principles
applied appear disharmonious when compared with other recent decisions dealing with
similar matters.”12
[17] The appellant relies on five grounds of appeal to establish an arguable case of
appellable error and to support its contention that it is in the public interest to grant
permission to appeal. It is also submitted that the decision manifests an injustice. The
appellant contends that the issues raised in the appeal have an impact beyond the parties to the
present proceedings and raise important matters of general significance for the Commission’s
unfair dismissal jurisdiction in relation to employees engaged by labour hire companies.
9 The jurisdictional decision was issued on 13 March 2018. 21 days from the date of that decision is 3 April 2018. The appeal
was lodged on 28 June 2018 - 86 days from 3 April 2018.
10 (2011) 192 FCR 78 at [43].
11 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch
(2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty
Ltd v Lawler and others (2011) 192 FCR 78 at [44] -[46]
12 [2010] FWAFB 5343, 197 IR 266 at [24] – [27].
[2018] FWCFB 6267
6
Specifically, the appellant framed the grounds of appeal by reference to the following
questions:
a) Did the respondent have a reasonable expectation of continuing employment
with the appellant on a ‘regular and systematic basis’?
b) Was the respondent dismissed by the appellant?
c) Did the Senior Deputy President give adequate reasons for his dismissal that
the respondent had been dismissed?
d) Was the Senior Deputy President’s decision that there was no valid reason for
the respondent’s dismissal vitiated by his failure to have regard to the
Temporary Employment Agreement (TEA) and direction of the host employer
that the respondent no longer perform work in its business?
e) Did the Senior Deputy President properly consider the length of the period the
respondent would have remained in employment, but for her dismissal, when
assessing compensation?
[18] We have decided to grant permission to appeal. We agree that the appeal raises
important matters of general significance for the Commission’s unfair dismissal jurisdiction
in relation to employees engaged by labour hire companies on temporary employment
agreements.
Proceedings at first instance
[19] The Senior Deputy President set out the background to his decision by reference to the
evidence:
“[5] The respondent operates a labour hire business. The applicant commenced
employment with the respondent as a casual employee and was assigned to work with
the Department of Justice – NSW Trustee & Guardian (DOJ) as a Conveyancing
Officer. In my jurisdictional decision, I found that the applicant worked 35 hours a
week, Monday to Friday, and that at the time of her dismissal, she had a reasonable
expectation of continuing employment on a regular and systematic basis.
[6] At the hearing, Mr Ostro said that the DOJ told him it no longer wanted the
applicant to continue with her assignment on Thursday, 26 October 2017. Gary Head,
the Assistant Director in charge of the branch of the DOJ where the applicant worked,
[2018] FWCFB 6267
7
sent Mr Ostro an email late on Wednesday, 25 October 2017, which included the
following:
‘Hi Gary
Thanks for the catch up today and discussion around Patrice.
As discussed we currently have a number of concerns with Patrice and her
attitude towards customers within NSWGT. Whilst these issues have been
raised with her on a number of occasions there appears to be no improvement
at all. Unfortunately we [are] at the stage that we will need to cease Patrice’s
contract and as discussed if you could talk with her on Thursday afternoon it
would be great.
Many thanks
Gary Head.’
[7] Mr Ostro said he had discussed Mr Head’s concerns about the applicant with him
‘[o]n many occasions, during the length of the assignment’. He did not, however,
speak to Mr Head about the contents of the email.
[8] Mr Ostro said:
‘The conversation was discussed [with the applicant] that particular Thursday
afternoon. I advised Patrice that the assignment had ceased and that she was no
longer required to attend to [the] Department of Justice. Also advised that we
could collect her belongings and she could come to the office to collect it, at
our office, to do so.’
[9] Mr Ostro said during the hearing that he told the applicant that the respondent
would continue looking at other opportunities for her, though there is no evidence that
he took any particular action along these lines, as he seemed to assume that her skills
were highly specialised. He did add:
‘So if an opportunity had arose [sic] I would have given her the opportunity to
discuss further, in regards to other options.’
[10] During his cross-examination by the applicant, Mr Ostro effectively conceded
that he did not tell her why – in his words – ‘the Department of Justice had ceased
your employment’.
‘At the time did you not feel it was necessary to give me a more detailed
explanation as to why that had happened ---? ---Yes, there was ---
--- even after I had asked for such? --- Well, I felt, on compassionate grounds,
on the basis that if I provided additional information, you know, in the state
that you were in, I felt it wasn’t necessary to provide that information to you.’
[2018] FWCFB 6267
8
[11] Mr Ostro added, in response to a question from the Bench about the DOJ no
longer requiring her:
‘There were performance issues during the course of the assignment and
attendance issues, and I believe that’s why the client had decided to progress to
that point to cease the employment.’
[12] Mr Ostro later added, in reply to a question from the applicant:
‘My understanding is this, is that the assistant director is the head of a
department, he’s come to me directly and said “Gary, we would like to cease
this”, on the basis of your customer service ethics and on the basis of your
performance. They’ve got the option to do that. So they’ve advised us, not
Spinifex.’” (Citations omitted).
[20] Under the heading ‘Consideration’, the Senior Deputy President addressed the
appellant’s primary argument that the TEA, was not terminated by the appellant, as
demonstrated by the steps taken by Mr Ostro to look for other assignments for the respondent;
rather, it was the respondent who “walked away from the arrangement”. In essence, the
respondent’s employment was a typical and unremarkable labour hire arrangement. In
rejecting these submissions, the Senior Deputy President found:
“[16] I am satisfied that the applicant’s employment was terminated by the
respondent. I found in my decision dismissing the jurisdictional objection that the
applicant was a casual employee, who worked on a regular and systematic basis and
had a reasonable expectation of continuing employment. This was in spite of the terms
of the written ‘Temporary Employee Agreement’.
[17] The only work the applicant had performed for the respondent was for the DOJ,
which was in practice, as I found in the jurisdictional decision, of an indefinite
duration. In reality, her work for the respondent began when she commenced her
assignment at the DOJ and ceased when that assignment was terminated. It is possible
that the respondent might have eventually found the applicant other work, but that
would have amounted to a new period of employment.
[18] I accept that there may be cases where labour hire employers move their
employees around from assignment to assignment with different ‘hosts’, and where the
mere ending of one assignment with a particular host does not end the employment
relationship. However, I do not think this was such a case.”
[21] The Senior Deputy President then made some general comments about labour hire
arrangements of the type disclosed in the matter before him. He relied on, and agreed with the
[2018] FWCFB 6267
9
comments of Deputy President Asbury in Kool v Adecco13 (‘Adecco’) (to which we will later
refer) and concluded:
“[22] In this case, it is clear from the evidence that the reason the DOJ no longer
wanted the applicant’s services was its concerns about her performance. In these
circumstances, the applicant’s dismissal should be seen as a dismissal on the grounds
of unsatisfactory performance and assessed as such.”
[22] The Senior Deputy President then dealt with the provisions at s 385 and each of the
matters the Commission must take into account under s 387 of the Act. He concluded at
paragraphs [28]-[34]:
“[28] Was there a valid reason for the applicant’s dismissal? Mr Ostro’s evidence
suggests that the DOJ no longer wanted the applicant to continue working with them
because of her performance, perhaps including her ‘customer service ethics’ and also,
possibly, issues about her attendance. The applicant denied that there was a reasonable
basis for these concerns. There is insufficient evidence before the Commission to
conclude that there was a valid reason for the applicant’s dismissal.
[29] It is quite clear that the applicant was not told of the real reason for her dismissal.
Mr Ostro suggested that he did this out of some desire to spare the applicant’s feelings.
However it is a fundamental feature of procedural fairness that an employee is told
why their employer is planning to dismiss them – even if doing so is sometimes
painful for either or both.
[30] Obviously, because the applicant was not told the real reason for her dismissal
she was not given the opportunity to respond to that reason.
[31] The issue of a support person does not arise.
[32] There is some evidence that Mr Head had told the applicant about his concerns
about her performance, though it is unclear whether he or the respondent ever told her
these concerns had placed her continued employment in jeopardy.
[33] The procedures adopted by the respondent to effect the applicant’s dismissal were
entirely unacceptable. It simply told her the DOJ no longer wanted her to continue her
assignment. It simply hid behind the terms of the ‘Temporary Employment Agreement’
with the applicant. Such documents do not obviate the need for labour hire employees
[sic] to treat their employees with fairness. There is nothing that suggests that its
failure in this regard was due either to the size of the respondent’s business or its lack
of access to human resources expertise. Rather, its actions appear to reflect its standard
operating procedures, which, I would suggest, need review.
13 [2016] FWC 925.
[2018] FWCFB 6267
10
[34] I do not consider that there are any other factors that need to be taken into
account.”
[23] The Senior Deputy President found that reinstatement was inappropriate and turned
his attention to an order for compensation by reference to each of the matters under s 392 of
the Act and the application of the Sprigg formula to the calculation of compensation.14 He set
out his findings as follows:
“s.392(2)(a) – Viability of employer’s enterprise
[40] There was no evidence that any order would affect the viability of the respondent.
s.392(2)(b) – Length of service
[41] The applicant’s length of service was relatively short and would support the
award of a lower amount of compensation.
s.392(2)(c) – Remuneration that would have been received
[42] The Applicant’s remuneration with the respondent was $1,330 a week.
[43] It is clear that the DOJ had concerns about the applicant’s performance, though
there is no satisfactory evidence that these concerns were justified. On balance, I am
satisfied that the respondent would have continued to employ the applicant for a
further three months if she had not been unfairly dismissed.
[44] Taking into account that this three-month period included the Christmas and New
Year holidays (and that the applicant was a casual), the amount I estimate the
applicant would have received in that time is $15,000.
s.392(2)(d) – mitigating efforts
[45] The applicant’s evidence is that she applied for over 100 jobs following her
dismissal.
s.392(2)(e) and (f) – Remuneration earned or likely to be earned
[46] The applicant did not receive any remuneration from employment or other work
in the three months following her dismissal.
s.392(2)(g) – Other matters
[47] I do not consider there are any other relevant matters to take into consideration.
14 See Gloria Bowden v Ottrey Homes Cobram and District Retirement Villages Inc. T/A Ottrey Lodge [2013] FWCFB 431;
Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21; N Ellawala v Australian Postal Corporation Print
S5109.
[2018] FWCFB 6267
11
s.392(3) – Misconduct
[48] There was no evidence of any misconduct by the applicant that contributed to the
dismissal.
s.392(4) – Shock, distress etc.
[49] I note that the amount of compensation calculated does not include a component
for shock, humiliation or distress.
s.392(5) – Compensation cap
[50] The amount of compensation I will order does not exceed the compensation cap.
Conclusion
[51] I am satisfied that the Applicant was protected from unfair dismissal, that the
dismissal was unfair and that a remedy of compensation is appropriate. I award the
applicant $15,000 in compensation. An order will be issued with this decision.”
GROUNDS OF APPEAL AND SUBMISSIONS
Ground 1
[24] We earlier set out the five questions raised by the appellant in this appeal. The first
question related to the minimum employment period objection which was dismissed by the
Senior Deputy President in his jurisdictional decision. As we have refused the appellant’s
application to extend time to appeal, in respect to that decision, this ground of appeal must be
rejected.
Ground 2
[25] As to the second ground of appeal, the appellant submitted that the Senior Deputy
President failed to have regard, or pay sufficient regard to the following matters in assessing
whether the respondent’s employment was terminated at the employer’s imitative.15
Specifically, it was put that:
15 See Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200.
[2018] FWCFB 6267
12
a) Unlike the facts in Adecco, there was evidence in this case of the terms and
conditions of the respondent’s employment as prescribed in the TEA which she
had accepted and understood.
b) After the end of the respondent’s placement at the Department of Justice
(DOJ), the appellant continued to look for new assignments for her.
c) At the conclusion of the respondent’s assignment, nothing was said or done by
the appellant to demonstrate that her employment had ceased. The employment
relationship remained on foot.
d) Mr Ostro had made clear to the respondent that the appellant was seeking other
placements for her.
[26] The appellant submitted that the Senior Deputy President’s conclusion that any new
assignment would have resulted in a new period of employment, was not the relevant
question. Rather, the appellant contended that the proper question was whether the
employment relationship had been terminated, not whether the employment contract had been
terminated.16 In applying the wrong test, it was said the Senior Deputy President fell into error
of the House v King17 kind.
[27] It was further submitted that this matter is distinguishable to Pettifer v MODEC
Management Services Pty Ltd18 (‘Pettifer’) and Tasmanian Ports Corporation v Gee19
(‘Tasports’) in that the respondent was allocated work at a host employer on an assignment by
assignment basis, terminable at the will of the host, with no requirement for further work to be
provided by the employer once an assignment ends and where the employer gives evidence
that it did not intend to terminate the employment relationship, but to keep it on foot.
[28] In oral submissions, Counsel focused on the Senior Deputy President’s conclusion that
the respondent’s dismissal was on the grounds of unsatisfactory performance, as determined
by the DOJ and not by any action that was taken by the appellant. The issues raised by the
DOJ about the respondent’s customer service ethic and poor attendance, had nothing to do
with the appellant. In fact, Mr Ostro had never claimed she was dismissed by the appellant
16 See Metropolitan Fire and Emergency Services Board v Garth Duggan [2017] FWCFB 4878.
17 [1936] 55 CLR 499.
18 [2016] FWCFB 5243.
19 [2017] FWCFB 1714.
[2018] FWCFB 6267
13
because of these or any other concerns. The respondent had understood and accepted that her
employment was on an assignment by assignment basis; that assignment was to the DOJ, and
if the DOJ no longer required her, the appellant as the employer, would look for alternative
assignments for her. The Senior Deputy President had evidence that because of the specialised
nature of the respondent’s work, no alternative assignment was able to be found and the
respondent had simply “walked away from her employment”.
[29] Counsel stressed that at all times, it was made clear to the respondent that the appellant
would do everything possible to secure alternative placements for her, if available. Although
Mr Ostro gave evidence that “well, I didn’t really do much”, this was because the respondent
had left her employment. Counsel drew a distinction between this case and the decision of
Deputy President Asbury in Adecco, in that there is no requirement for the Commission to
make inferences about the employment agreement, because here the terms of the TEA were
more clear and the respondent understood and agreed to these terms. Mr Reitano also relied
on the Employment Separation Certificate, which does not mention anything about capacity
or performance as the reason for dismissal, but states ‘Smalls Recruiting Trading as Spinifex
Recruiting is a casual labour hire company and the candidate may be between placements.’
[30] In reply submissions, the respondent put that the original assignment with the DOJ had
intended to end on 30 June 2017, but was extended, unbroken without any recourse to her.
This resulted in her reasonable expectation of ongoing employment. In any event, the TEA
does not define what a temporary agreement is and does not set out the conditions of her
employment, such as work hours, hourly rate, classification, or duties. She believed it was a
one sided agreement which was “false, misleading, coercive, uncertain and ambiguous”.
[31] The respondent submitted that the separation certification makes clear that she was
dismissed by the appellant on 26 October 2017. Further, it was incorrect for the appellant to
claim that further temporary placements were explored, when her assignment with the DOJ
was still required and the appellant had advertised for a replacement for her at DOJ on 21
November 2017.
Ground 3
[2018] FWCFB 6267
14
[32] The appellant’s third ground of appeal was that the Senior Deputy President failed to
provide adequate reasons for his decision.20 Further, the appellant submitted that the Senior
Deputy President did not “enter into” the issue raised by the appellant;21 namely, that the
employment relationship remained on foot, notwithstanding that the DOJ assignment ended
according to the terms of the TEA and the appellant would look for new assignments for the
respondent. This was a material matter not taken into account by the Senior Deputy President.
In addition, the Senior Deputy President did not disclose why he preferred the respondent’s
case to that of the appellant.
[33] The respondent submitted that the Senior Deputy President correctly relied on the
comments of Deputy President Asbury in Adecco that the contractual relationship between the
labour hire company and a host employer cannot be used to defeat the rights of a dismissed
employee seeking a remedy for unfair dismissal. The respondent rejected the appellant’s
submission that the Senior Deputy President failed to give adequate reasons for his decision.
Ground 4
[34] The appellant submitted that in assessing whether there was a valid reason for the
respondent’s termination it was relevant that her assignments were temporary and could be
terminated at any time at the absolute discretion of the host employer. The exercise of the
DOJ’s discretion meant that the appellant was no longer capable of providing work for the
respondent with its client.
[35] The appellant put that the host employer’s discretion that the employee was no longer
to perform work for it, amounted to a valid reason for termination because the employee was
incapable of performing the inherent functions of their role arising from the actions of a third
party. This went to the ‘capacity’ of the employee to do the work they were employed to do.22
The appellant said that the Senior Deputy President’s failure to give consideration to this
mandatory matter under s 387(a) of the Act, was an error in the exercise of his discretion. The
20 Ainger v Coffs Harbour City Council [2005] NSWCA 424 at [43] and [48]; P R Barach v University of New South Wales
[2010] FWAFB 3307.
21 Ainger v Coffs Harbour City Council [2005] NSWCA 424 at [48] and [53].
22 Pettifer v MODEC Management Services Pty Ltd [2016] FWCFB 5243.
[2018] FWCFB 6267
15
public interest was enlivened as the Senior Deputy President acted inconsistently with the
reasoning in Pettifer.
Ground 5
[36] The appellant submitted that the Senior Deputy President had failed to give
consideration to the following matters when determining the amount of compensation by
reference, in part, to the anticipated period of employment the respondent would have
continued in employment, but for her termination:
The TEA was short term and uncertain;
The host employer controlled the length of the assignment period and could
terminate an assignment at its absolute discretion;
There was no requirement for the appellant to offer the respondent any further work
at the completion of the assignment with the DOJ, or any other employer; and
The TEA did not require the respondent’s employment to continue for a single day
more after the completion of her assignment.
[37] By not considering these matters, the Senior Deputy President fell into error of the
House v King kind. The assessment of compensation in these circumstances was a matter of
general significance to the Commission’s unfair dismissal jurisdiction.
[38] In oral submissions, Counsel stated that the Senior Deputy President paid no regard to
the fact that rightly or wrongly, the DOJ had formed the view that the respondent’s attendance
and performance were unsatisfactory. This was a factor going to the assessment of how long
the employment was likely to have continued. While Counsel put that these concerns were
raised by the DOJ, the respondent was not told that these reasons were why her assignment
was ended. In questioning from the Bench and assuming the respondent had been dismissed
by the appellant, the specialist role performed by her, meant that the prospects of finding an
alternative assignment would be close to zero. Accordingly, the likelihood of ongoing
employment, for the purposes of the Sprigg formula’s compensation calculation would also
be close to zero.
[2018] FWCFB 6267
16
[39] In the respondent’s written reply, she acknowledged that while the period of ongoing
employment could never be known, her ongoing employment was for 7 hours a day and 35
hours a week for guaranteed core hours of between 9.30am and 3.30pm. Even if viewed as a
fixed term contract, the TEA was extended twice, making her employment continuous and
unbroken from 7 March 2017 to 26 October 2017.
[40] In oral submissions, the respondent insisted she would not have “walked away” from
her employment simply to end up not being employed. It was not until February 2018 that she
secured alternative employment with the Environmental Protection Agency. Further, it was
not true that she was in a specialised field - conveyancing is not specialised. It was submitted
she had to continually request her belongings and a separation certificate. The appellant had
no intention of looking for alternative assignments. She had asked what had happened, given
she had been handed new case files the day before. It was also very difficult finding work
over the Xmas period.
[41] The respondent explained that she had experienced a very difficult period in her life in
2017, with domestic violence and health issues. While conceding that work was not a priority
during this time, she had always made up the time she missed and had advised management
with notice of the reasons for her absences. The respondent believed she had been dismissed
because she raised a bullying complaint and legal action against her male manager and was
dismissed the next day.
[42] In reply, Mr Reitano pointed to the transcript references to the evidence of Mr Ostro,
as confirming his attempts to find alternative placement for the respondent.
CONSIDERATION
[43] At paragraph [21] of his decision, the Senior Deputy President referred to, and cited
with approval the comments of Deputy President Asbury in Adecco in respect to labour hire
arrangements in the context of the dismissal of a labour hire employee. It is clear the Senior
Deputy President considered the circumstances in this matter were similar to those in Adecco.
He also opined that the comments of Deputy President Asbury “were quoted with approval by
Full Benches of the Commission in Pettifer and Tasports.”
[2018] FWCFB 6267
17
[44] In this appeal, the appellant sought to distinguish the decision in Adecco (and by
consequence the comments of the Full Benches in Pettifer and Tasports) in that in this case
there was no requirement for the Commission to draw inferences about the employment
agreement. This was so because the terms of the TEA were clear and the respondent had
understood and agreed to those terms.
[45] We have considered the decisions in Adecco, Pettifer, and Tasports in the context of
the conclusions reached by the Senior Deputy President below.
[46] As was observed by the Full Bench in Pettifer the factual circumstances in Adecco
were different to circumstances in Pettifer. At paragraphs [40]-[41] the Full Bench said:
“[40] The factual situation before the Deputy President was somewhat different to Mr
Pettifer’s circumstances. In that case, the Deputy President did not have the terms of
the contractual relationship between the labour hire company and the host employer in
evidence before her. Some of her comments in that context might well be considered
to be, at their highest, a general statement of principle. That principle is that, in the
context of labour hire arrangements, the actions of an employer who dismisses an
employee following the exercise of a host employer’s contractual right to have the
employee removed from the host site cannot rely exclusively on the actions of that
third party as their defence to a claim of unfair dismissal. A discretion remains with
the FWC to decide whether a particular dismissal is unfair in all the circumstances.
[41] In the Adecco case, Deputy President Asbury found that a failure on behalf of the
applicant’s employer to explore redeployment opportunities for the applicant
constituted an element of unfairness in the circumstances of the applicant’s dismissal.
In this case, there is no contest that MODEC did explore redeployment opportunities
for Mr Pettifer both prior to his termination and afterwards, including liaising with his
union to explore the opportunity of substitution. In this respect, we would also observe
that there is absolutely nothing to suggest that MODEC colluded with its client to
remove Mr Pettifer from the work site”
[47] We do not consider the Senior Deputy President erred in drawing comparisons with
Adecco. It seems readily apparent, from the Senior Deputy President’s references to the
evidence of Mr Ostro, that he did not accept that the appellant had made genuine attempts to
explore redeployment opportunities for the respondent. When asked what he had done to
explore alternative assignments, Mr Ostro said “well, I didn’t do much”. We consider that the
Senior Deputy President was entitled to rely on this admission as constituting “an element of
unfairness in the circumstances of the applicant’s dismissal”. Moreover, it is also self-evident
[2018] FWCFB 6267
18
that the Senior Deputy President took into account the “entirely unacceptable” procedures
adopted by the appellant to effect the respondent’s dismissal.23
[48] In our opinion, the Senior Deputy President correctly identified those matters which
constitute unfairness in the circumstances of the respondent’s dismissal, consistent with the
approach adopted in Adecco and adopted by the Full Bench in Pettifer.
[49] To add weight to these considerations is the decision of another Full Bench in
Tasports. After setting in some detail the ratio decidendi in Pettifer, the Full Bench concluded
at paragraphs [33]-[37]:
“[33] Importantly the Full Bench did not conclude that the decision of Asbury DP in
Kool v Adecco Industrial Pty Ltd T/A Adecco, to which reference was made in the
above passage, was in error, and indeed endorsed that decision to the extent that it
contained a general statement of principle. That principle was enunciated in the
following passage in Adecco, the second paragraph of which was quoted by the Full
Bench in Pettifer in the course of its recital of the appellant’s submissions:
‘[48] Where managers of a host employer inform a labour hire employee that
he or she is to be removed from site on the basis of conduct, capacity or work
performance, the actions of the host employer may be tantamount to dismissal.
This is particularly so where managers or supervisors of the host employer
have also been involved in disciplining the labour hire employee. A labour hire
employee seeking to contest such action by making an application for an unfair
dismissal remedy, faces considerable difficulty, principally because the host
employer is not the employer of the labour hire employee. It is also the case
that a labour hire company may face considerable difficulty preventing a host
employer from taking disciplinary action against an employee of the labour
hire company.
[49] However, the contractual relationship between a labour hire company and
a host employer cannot be used to defeat the rights of a dismissed employee
seeking a remedy for unfair dismissal. Labour hire companies cannot use such
relationships to abrogate their responsibilities to treat employees fairly. If
actions and their consequences for an employee would be found to be unfair if
carried out by the labour hire company directly, they do not automatically
cease to be unfair because they are carried out by a third party to the
employment relationship. If the Commission considers that a dismissal is
unfair in all of the circumstances, it can be no defence that the employer was
complying with the direction of another entity in effecting the dismissal. To
hold otherwise would effectively allow labour hire employers to contract out of
legislative provisions dealing with unfair dismissal.’
23 [2018] FWC 3686 at [33].
[2018] FWCFB 6267
19
[34] Tasports went so far as to submit that Pettifer stood for the principle that a
decision by a host employer in the context of a labour hire arrangement to have a
worker supplied by a labour hire employer removed from its worksite meant that there
was necessarily a valid reason for the worker’s dismissal by the labour hire employer
based on the worker’s capacity for the purpose of s.387(a). That submission cannot be
accepted. It is inconsistent with the statement of principle in Adecco which, like the
Full Bench in Pettifer, we endorse. Even in the context of a labour hire arrangement,
whether there is a valid reason for dismissal will depend upon all the circumstances of
the case. Pettifer exemplifies that proposition because of the way in which its different
facts resulted in a different outcome to that in Adecco, where the Deputy President
found that there was no valid reason for the employee’s dismissal related to her
capacity or conduct and that the dismissal was unfair. That may be illustrated in three
ways.
[35] First, as the Full Bench pointed out, in Adecco the terms of the contract between
the labour hire employer and the host employer were not disclosed, so that it was not
clear what precise right the host employer had to remove the worker from the
worksite. In Pettifer the Full Bench had before it the relevant provision of the contract,
which made it abundantly clear that the host employer had the absolute right to
remove the worker where it subjectively formed the view that the “involvement” of
the workers was not “in the best interests of the project”. There is no reason to assume
that a provision of that precise nature is universal in labour hire contracts. If, for
example, the labour hire contract permitted the host employer to request the removal
of a worker only in the case of proven misconduct or non-performance of duties,
entirely different considerations would arise. In that case the labour hire employer
would have the contractual right to resist the removal of a worker by the host
employer where substantiation of any allegation of misconduct or non-performance
was not forthcoming. If, notwithstanding this, the labour hire employer simply
acquiesced in the removal of the worker and proceeded to dismiss him or her, it is
difficult to imagine that such a dismissal could be justified on the basis of the worker’s
incapacity, since the inability of the worker to continue working for the host employer
would be the result of the labour hire employer’s failure to insist upon compliance
with its contract with the host employer rather than any incapacity on the part of the
worker.
[36] Second, in Adecco the labour hire employer simply acquiesced in the host
employer’s contention that the worker had engaged in misconduct without forming
any independent view about whether this allegation was substantiated, in
circumstances where the Deputy President found, on the evidence before her, that it
was not. By contrast, in Pettifer Modec formed the independent conclusion that the
worker had not done anything which warranted dismissal, as earlier stated. This
distinction is significant because it demonstrates that where a labour hire employer
dismisses a worker based on an endorsement of an allegation of misconduct by the
host employer, it may be the case that the dismissal is better characterised as conduct-
based rather than capacity-based, and its validity under s.387(a) is to be assessed on
that basis.
[37] Third, in Adecco the Deputy President did not, in connection with s.387(a), accept
that the labour hire employer had established that there was a lack of alternative work
placements for the employee in question, and pointed to evidence which suggested
[2018] FWCFB 6267
20
that in fact there may have been alternative work available. The Full Bench in Pettifer
at paragraph [41] identified this as a further point of factual distinction, in that Modec
had made exhaustive efforts to find alternative work for Mr Pettifer.” (Citations
omitted).
[50] The authorities we have referred to make clear that the nature of the employment
arrangement in a particular case will depend on an examination and analysis of the
employee’s employment contract. It is to that analysis to which we will now turn.
[51] Paragraphs [1]-[3] of the TEA states:
“1. My employment with Spinifex Recruiting is as a temporary on an assignment by
assignment basis, with each assignment constituting a discrete period of employment.
I may accept or reject any offer of an assignment from Spinifex Recruiting. On
completion of an assignment, whether satisfactory, or otherwise, Spinifex Recruiting
is under no obligation to offer me further assignments.
2. I understand that Spinifex Recruiting’s customer (not Spinifex Recruiting) controls
the length of any assignment and I accept that whilst Spinifex Recruiting may indicate
to me in good faith the potential length of an assignment with a customer, the
customer may vary the length of an assignment period or terminate my attendance at
an assignment at their absolute discretion. I agree to notify Spinifex Recruiting
without delay if I am informed by the customer of the completion date of an
assignment.
3. I accept that I am under care, control and supervision of Spinifex Recruiting’s
customer during the period of any assignment. In regard to defined working
arrangements and the manner in which and the degree of proficiency at which my
work is to be performed, I acknowledge the rights of Spinifex Recruiting’s customer to
direct my work activities.”
[52] It will be immediately obvious that the TEA contains no assignment date or
conclusion date with the DOJ. Given the respondent’s assignment was extended twice and
without any indication of when it might end, it is difficult to see how it could be said to be
clear as to the rights and obligations the appellant had to dismiss the respondent. We would
also observe that it is curious why Mr Ostro claimed he was looking for alternative
opportunities, when from the terms of the TEA we quote above, the appellant had no
obligation to offer her further assignments and the customer (host employer) could terminate
the assignment “at their absolute discretion”.
[2018] FWCFB 6267
21
[53] We do not consider the Senior Deputy President erred when he found that the
respondent’s employment was terminated by the appellant. It is plain from the Senior Deputy
President’s jurisdictional decision, (and for which an extension of time to appeal was refused
by us), that the Senior Deputy President found that the respondent worked as a casual on a
regular and systematic basis and had a reasonable expectation of continuing employment,
despite the terms of the TEA.
[54] The Senior Deputy President described the respondent’s work for the Department of
“an indefinite duration”. The submissions of the appellant that the Senior Deputy President
failed to have regard to the terms and conditions of the TEA must be seen in this context. It is
apparent that the Senior Deputy President was very much “live” to the terms and inadequacies
of the TEA. Moreover, he did not accept it properly characterised the true nature of the
employment relationship. We agree with the Senior Deputy President that the fact the
appellant continued to look for new assignments (which we doubt) is not relevant. Had a new
assignment been found for the respondent, it would, on the appellant’s own evidence,
constitute a new period of employment. The Senior Deputy President did not apply the wrong
test, namely, that the question was whether the employment relationship had been terminated,
not whether the employment contract had been terminated.
[55] Counsel for the appellant sought to distinguish the decisions of the Full Bench in
Tasports and Pettifer in that in this case the appellant did not intend to terminate the
employment relationship, but to keep it on foot. We do not agree.
[56] In Tasports the Full Bench said at paragraphs [33]-[34]:
“[33] Importantly the Full Bench did not conclude that the decision of Asbury DP in
Kool v Adecco Industrial Pty Ltd T/A Adecco, to which reference was made in the
above passage, was in error, and indeed endorsed that decision to the extent that it
contained a general statement of principle. That principle was enunciated in the
following passage in Adecco, the second paragraph of which was quoted by the Full
Bench in Pettifer in the course of its recital of the appellant’s submissions:
‘[48] Where managers of a host employer inform a labour hire employee that
he or she is to be removed from site on the basis of conduct, capacity or work
performance, the actions of the host employer may be tantamount to dismissal.
This is particularly so where managers or supervisors of the host employer
have also been involved in disciplining the labour hire employee. A labour hire
employee seeking to contest such action by making an application for an unfair
[2018] FWCFB 6267
22
dismissal remedy, faces considerable difficulty, principally because the host
employer is not the employer of the labour hire employee. It is also the case
that a labour hire company may face considerable difficulty preventing a host
employer from taking disciplinary action against an employee of the labour
hire company.
[49] However, the contractual relationship between a labour hire company and
a host employer cannot be used to defeat the rights of a dismissed employee
seeking a remedy for unfair dismissal. Labour hire companies cannot use such
relationships to abrogate their responsibilities to treat employees fairly. If
actions and their consequences for an employee would be found to be unfair if
carried out by the labour hire company directly, they do not automatically
cease to be unfair because they are carried out by a third party to the
employment relationship. If the Commission considers that a dismissal is
unfair in all of the circumstances, it can be no defence that the employer was
complying with the direction of another entity in effecting the dismissal. To
hold otherwise would effectively allow labour hire employers to contract out of
legislative provisions dealing with unfair dismissal.’
[34] Tasports went so far as to submit that Pettifer stood for the principle that a
decision by a host employer in the context of a labour hire arrangement to have a
worker supplied by a labour hire employer removed from its worksite meant that there
was necessarily a valid reason for the worker’s dismissal by the labour hire employer
based on the worker’s capacity for the purpose of s.387(a). That submission cannot be
accepted. It is inconsistent with the statement of principle in Adecco which, like the
Full Bench in Pettifer, we endorse. Even in the context of a labour hire arrangement,
whether there is a valid reason for dismissal will depend upon all the circumstances of
the case. Pettifer exemplifies that proposition because of the way in which its different
facts resulted in a different outcome to that in Adecco, where the Deputy President
found that there was no valid reason for the employee’s dismissal related to her
capacity or conduct and that the dismissal was unfair. That may be illustrated in three
ways.”
[57] In our opinion, Tasports is on ‘all fours’ with the facts and circumstances of this case.
[58] It matters little to a regular and systematic casual employee who is otherwise protected
from unfair dismissal, pursuant to s 384(2) of the Act, such as the respondent, that she was
dismissed according to a misnamed temporary contract of employment, or her employment
came to an end because the labour hire employer could not find her an alternative assignment.
The impact on the respondent is the same – her employment comes to an end through no fault
of her own. We expressly reject, as did the Senior Deputy President, the appellant’s
submission that it was the respondent who ‘walked away from the arrangement’ (her
employment). Moreover, this submission is inconsistent with the appellant’s other submission
[2018] FWCFB 6267
23
that the employment relationship remained ‘on foot’, because Mr Ostro was looking for
alternative assignments for the respondent.
[59] Given this factual matrix and the obvious failure of the appellant to comply with all of
the other requirements under s 387, it is difficult to imagine how the respondent’s dismissal
could be determined as anything but unfair. We agree with the Senior Deputy President when
he said the appellant hid behind the terms of the TEA when deciding to dismiss the
respondent.
[60] We consider it would be a perverse outcome, were it to be the case that an otherwise
unfair dismissal cannot be so described because of technical manoeuvrings over the true
nature of the employment relationship and the circumstances giving rise to a dismissal, as was
evident here. This conclusion is consistent with Tasports and Pettifer.
[61] Further, we do not accept that the appellant can rely on Mr Ostro’s evidence that the
employment relationship remained ‘on foot’ because he was looking unsuccessfully for
alternative assignments for the respondent. The extracts from the evidence in this respect
demonstrates what we consider to be little more than paying “lip service” to this contention.
The Senior Deputy President found that “there is no evidence that he took any particular
action along these lines”, as he claimed that her skills were “highly specialised”. In addition,
we agree with the respondent that the role of a conveyancer is hardly “highly specialised”,
such as to support a proposition that alternative employment opportunities for conveyancers
were limited.
[62] As to the appellant’s third ground of appeal in respect to an alleged failure to provide
adequate reasons for his decision, we consider there is no substance to this ground of appeal.
While reasons need not be elaborate, or spell out every discrete step in the Commission’s
analytical process, or deal with every matter of fact or law raised, they must enunciate the
“essential grounds for reaching the decision and must address material questions of fact and
law in a manner which discloses the steps which lead to a particular result”.24 On a fair
reading of the Senior Deputy President’s decision, it is clear that he carefully analysed the
terms of the TEA and methodically set out his reasoning process as to why the respondent’s
24 P R Barach v University of New South Wales [2010] FWAFB 3307 at [16].
[2018] FWCFB 6267
24
dismissal was unfair in the context of the circumstances of the case. He correctly applied the
law and the relevant statutory requirements to that task. It is obvious why the Senior Deputy
President preferred the respondent’s case to that of the appellant.
[63] As to appeal ground four going to valid reason, there is no doubt the Senior Deputy
President considered each of the matters in s 387 of the Act and, in particular, gave active
consideration to whether there was a valid reason for the respondent’s dismissal. Each of the
matters in s 387 must be taken into account by the Commission when determining whether a
particular dismissal is ‘harsh, unjust or unreasonable’. It is apparent that the Senior Deputy
President took into account ss (a) of s 387, but found there was insufficient evidence to
conclude there was a valid reason for dismissal. This conclusion was reasonably open to the
Senior Deputy President and does not amount to an error of jurisdiction or an error in the
exercise of discretion of the House v King kind.
[64] The Senior Deputy President noted that Mr Ostro was aware that the DOJ no longer
wanted the respondent to work for it because of concerns about her ‘customer service ethics’
and attendance. The respondent denied there was any reasonable basis for these concerns and,
in any event, they were never put to her as reasons for her dismissal. Given this was the extent
of the evidence, it was entirely understandable that the Senior Deputy President was unable to
conclude that there was a valid reason for her dismissal. It was a conclusion reasonably open
to the Senior Deputy President, given the paucity of evidence, one way or the other. This
conclusion had the obvious corollary that ss 387(b)-(e) – those matters going to procedural
fairness – were not able to be satisfied by the appellant. It was on this basis that the Senior
Deputy President found the dismissal to be unfair. The Senior Deputy President’s conclusion
was correct. We discern no error in his assessment of the matters in s 387, such as to warrant
any interference by this Full Bench, even if it was open for us to do so. The Senior Deputy
President adopted a wholly unremarkable and orthodox approach to his task under s 387 of
the Act.
[65] Turning then to the final ground of appeal, relating to the award of compensation to
the respondent; we apprehend, the appellant quibbles with the amount of $15,000 reached by
the Senior Deputy President’s calculations based on the Sprigg formula, most notably his
[2018] FWCFB 6267
25
assessment of the period of time the respondent would have remained in employment, but for
her dismissal.25
[66] Given that the respondent’s DOJ assignment had been extended twice, and there was
no valid reason for her dismissal and the Senior Deputy President found that the work
performed by her was for an ‘indefinite duration’ and that she had a reasonable expectation of
continuing employment, it was hardly surprising that the Senior Deputy President was
satisfied that the respondent would have continued to be employed by the appellant for a
further three months.
[67] While we note that it is inherently difficult to make an assessment under s 392(2)(c) of
the Act, it is an assessment which must be undertaken in the overall context of the application
of the Sprigg formula under s 392(2) of the Act.26 We find no error in the Senior Deputy
President’s assessment of a further three months of employment and we agree with that
assessment.
[68] Contrary to Counsel’s submissions, the Senior Deputy President did have regard to the
appellant’s submission that compensation should not be substantial because the employment
was inherently short term and of a casual and temporary nature, and the limited evidence of
the DOJ’s concerns about the respondent’s performance and conduct meant her employment
would not have continued for a long time.27
[69] While we understand that the appellant did not take issue with the Senior Deputy
President’s other findings under s 392 of the Act, it is plain he applied the statutory task
correctly and made appropriate findings according to the exercise of his discretion under s
392 of the Act.
[70] For all these reasons, we are satisfied that the appellant’s five grounds of appeal have
not been made out and the appeal must be dismissed. We order:
(1) Permission to appeal is granted.
(2) The appeal is dismissed.
25 s 392(2)(c).
26 Mr John McCulloch v Calvary Health Care Adelaide [2015] FWCFB 2267 at [27].
[2018] FWCFB 6267
26
(3) The stay order made by Vice President Catanzariti on 2 July 2018 in PR608669 is
set aside.
VICE PRESIDENT
Appearances:
Mr R. Reitano, of Counsel, with Mr P. Macken (Leigh Virtue & Associates) solicitor
instructing for the appellant
Ms P. Tait, respondent, on her own behalf
Hearing details:
2018
Sydney
7 August.
Printed by authority of the Commonwealth Government Printer
PR701175
27 Decision at [43].
OMMISSION CO THE SEAA THE FAIR WORK
