1
Fair Work Act 2009
s.365—General protections
Anthony Hyde
v
Randstad Pty Limited; Brisbane City Council
(C2020/6713)
DEPUTY PRESIDENT ASBURY BRISBANE, 1 APRIL 2021
Application to deal with contraventions involving dismissal.
Background
[1] By application made on 1 September 2020 under s. 365 of the Fair Work Act 2009
(FW Act), Mr Anthony Hyde (Applicant) seeks that the Fair Work Commission deal with a
dismissal dispute said to involve a contravention of the general protections provisions of the
FW Act. Mr Hyde was employed by Randstad Pty Limited (first Respondent). The first
Respondent provides labour hire services to the Brisbane City Council (second Respondent).
[2] The Applicant was engaged in the performance of horticultural and labouring duties
for the second Respondent from February 2016. On 11 August 2020, the Applicant sustained
an injury while at work which he stated occurred when a work colleague kicked a football
towards the Applicant causing him to fall and injure his groin. The Applicant states that on 11
August he was contacted by a supervisor employed by the second Respondent who told him
that: “This is not a good look for Council. You’ve just returned from work after being away
due to an injury and now this has happened. We are going to have to let you go.”
[3] In his Form F8 Application, the Applicant contended that he was dismissed on 11
August 2020 and that he submitted a Workers’ Compensation claim for his injury on 12
August 2020. The Applicant also stated in the Form F8 that he received an Employment
Separation Certificate on 25 August 2020 stating that his employment was terminated due to
“end of season or contract”. The Applicant asserts that the first Respondent contravened ss.
340 and 351 of the FW Act by taking adverse action against him because he exercised a
workplace right by making a workers’ compensation claim. The Applicant also contends that
the second Respondent was involved in the contraventions.
[4] The Applicant’s claims are met with a jurisdictional objection by the first Respondent
on the basis that the first Respondent denies that it terminated the Applicant’s employment
and instead asserts that when his assignment with the second Respondent ended, the
Applicant terminated his own employment by requesting an Employment Separation
Certificate rather than remaining on the first Respondent’s system to be placed with another
organisation. This Decision concerns the jurisdictional objection.
[2021] FWC 1745
DECISION
E AUSTRALIA FairWork Commission
[2021] FWC 1745
2
Hearing
[5] Directions were issued for the hearing and determination of the jurisdictional
objection, requiring the parties to file and serve outlines of submissions and statements of
evidence they intended to rely on at hearing. Permission was granted for the Applicant to be
represented by Ms Demarco, a solicitor with the firm Demarco Law, on the basis that I was
satisfied that the matter was of sufficient complexity and that issues of fairness did not arise,
given that the Respondent was represented by its Industrial Relations Business Partner, Mr
Lewis. I was also satisfied that representation would enable the matter to be dealt with more
efficiently.
[6] During Mentions and in Directions issued to the parties, it was made clear that
witnesses would be required to attend the Commission to give evidence either in person or by
telephone and that statements would not be admitted unless the deponent was available for
cross-examination. The Directions issued on 23 November 2020 stated that the parties were
to proceed on the basis that witnesses would be required for cross-examination unless advice
to the contrary was provided by the other party. The matter was listed for hearing on 18
December 2020 in relation to the jurisdictional objection.
[7] The first Respondent filed the following material as the basis for its jurisdictional
objection to the application:
Outline of submissions;
Submissions in reply to the Applicant’s submissions;
Witness Statement of Ms Tracey Horne, HR Business Partner;
Additional Witness Statement from Tracey Horne;
Statement of Ms Tusi Tulemau
Timestamped notes entered into its candidate management system by Ms Tulemau;
Email from Mr Daiju Ramakrishnan, Software Development Manager in relation to
the candidate management system;
Copy and paste of 17 August 2020 comments in candidate management system
inserted by Ms Tulemau; and
Employment contract signed by the Applicant on 29 July 2019.
[8] The first Respondent also relied on its Form F8A Response to general protections
application. The first Respondent’s material was filed within the time frame set out in the
Directions but was not in the required form. In this regard, the evidence of two witnesses for
the Respondent – Ms Tulemau and Mr Ramakrishna – was set out in emails rather than in
statement form and referred to other documents which were not appended to the emails or
referenced in them. Further, the first Respondent’s submissions addressed the concept of dual
employment in circumstances where it had not been asserted by the Applicant that he had
been employed pursuant to a dual relationship with the second Respondent.
[9] At the hearing it emerged that the Respondent did not propose to call Ms Tulemau or
Mr Ramakrishna to give evidence and simply sought to tender their statements. This was
problematic in circumstances where the first Respondent’s case in relation to the jurisdictional
objection is based on a telephone conversation and exchange of emails between the Applicant
and Ms Tulemau. The first Respondent’s representative advised the Commission that instead
[2021] FWC 1745
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of calling Ms Tulemau to give evidence about her conversation with the Applicant, the
intention was to call evidence from Ms Horne about what Ms Horne told Ms Tulemau to say
when she spoke to the Applicant, in circumstances where Ms Horne was not a party to the
relevant conversation.
[10] The Applicant’s material was not filed in accordance with the timeframe set out in the
Directions. The Applicant’s material in response to the jurisdictional objection was required
to be filed by 7 December. When the material was not filed by that date it was necessary to
list the matter for Mention on 14 December 2020. The Applicant’s material was filed on 15
December 2020 and the Respondent was given a further period until 17 December to file
material in reply. The Applicant then sought to file a further statement on 17 December 2020,
again outside the time required in the Directions, and the Commission was advised that the
Applicant had moved to New South Wales and sought to give evidence by telephone. The
Applicant’s representative was advised that this request would be considered at the hearing.
[11] A further issue with the Applicant’s submissions was the assertion – contrary to the
decision of the Full Court of the Federal Court in Coles Supply Chain Pty Ltd v Milford 1–
that the Commission was not required to determine whether the Applicant had been dismissed
before a certificate could be issued pursuant to s. 368(3) of the FW Act. The Full Court of the
Federal Court held in Milford that where it was in issue whether a person making an
application under s. 365 of the Act had been dismissed, a certificate could not be issued under
s. 368(3) unless the Commission determined that there had been a dismissal. That decision
was handed down on 11 September 2020, before the Applicant’s submissions in the present
case were filed.
[12] At the commencement of the hearing on 18 December 2020, the Applicant’s
representative advised that she had not been unable to contact the Applicant and that it was
her understanding that he was driving a truck somewhere in New South Wales. As a result,
not only was the Applicant not present at the hearing he was also not available by telephone.
I indicated that I would allow the Applicant to give evidence by telephone and a short
adjournment was granted to enable the Applicant’s representative to attempt to contact him.
In the circumstances, the first Respondent was also afforded an opportunity to contact Ms
Tulemau and Mr Ramkrishnan to arrange for them to give evidence by telephone in the
proceedings. The first Respondent’s representative was able to contact those persons and
arranged with them to be available to give evidence by telephone.
[13] After making attempts the Applicant’s representative was unable to contact the
Applicant. In circumstances where the matter had been listed for hearing since 23 November
2020 and all other witnesses were available, I decided to hear the evidence of the first
Respondent’s witnesses and then list the matter for a further hearing on 11 January 2021 to
allow the Applicant an opportunity to give evidence. In doing so I made clear that if the
Applicant was not available on 11 January 2021, I would determine the matter in his absence
given that he had notice of the hearing and the requirement that he attend.
[14] The Applicant also failed to appear on 11 January 2021 and numerous attempts by my
Associate and the Applicant’s representative to contact him on that date were unsuccessful.
There was no contact from the Applicant after the hearing excusing his failure to attend. I
1 [2020] FCAFC 152.
[2021] FWC 1745
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concluded the hearing of the jurisdictional objection in the Applicant’s absence. As there
were gaps in the evidence which were not filled by the evidence of the first Respondent’s
witnesses, I have referred to the Applicant’s evidence to fill them. I have also referred to the
Form F8 filed on behalf of the Applicant to supplement his witness statements. However,
where there is an inconsistency between the Applicant’s evidence and that of the witnesses for
the first Respondent, I prefer the evidence of the first Respondent’s witness on the basis that
they gave oral evidence and were available for cross-examination and to answer questions
from me. I have also referred to the Form F8A filed by the second Respondent to fill in some
background information which was not provided by the first Respondent or the Applicant and
which was necessary for the determination of the issues in dispute. The Form F8A was filed
by the second Respondent on 14 September 2020 – before the Applicant and the first
Respondent filed their material.
Evidence and submissions
[15] The Applicant was employed by the first Respondent in August 2019. The
Applicant’s contract of employment was tendered by the first Respondent but was not
appended to a witness statement as the Directions required. It was received into evidence
with the consent of both parties. The contract is headed “temporary employee contract of
service” and provides for temporary employees to register for employment with the first
Respondent and to be assigned to clients to provide services. “Client” is defined in the
contract as a client of the first Respondent with whom it has an agreement to provide on-hire
workers and to whom the temporary employee may be assigned to work at any time.
“Temporary Employee” is defined as being engaged on a casual basis to undertake
assignment/s for the benefits of the first Respondent’s clients. “Assignment” is defined in the
contract as the period during which a temporary employee is supplied by the first Respondent
to a client.
[16] The nature of the employment relationship between a temporary employee and the
first Respondent is defined in clause 2 of the contract as follows:
“2 Nature of Employment Relationship
2.1 The relationship between yourself and Randstad is that of casual employee and employer. This
Contract of Service will apply on each occasion you are offered and accept an Assignment from
Randstad.
2.2 Randstad does not control the length of Assignments with its Clients. A Client may vary the
length of an Assignment or end your attendance at an Assignment at their absolute discretion, and on
short notice. This includes prior to the commencement of an Assignment if the Client reassesses their
needs. Changes to the internal workload, operational requirements and budgetary funding can all impact
the length of an Assignment.
2.3 On completion of an Assignment, Randstad will use reasonable endeavours to obtain an
alternative Assignment for you. However, the casual nature of your engagement means there is no
guarantee of ongoing or regular work. Randstad is not liable to pay you if it does not offer you any
Assignments, or a particular Assignment.”
[17] Clause 3 of the contract provides that a temporary employee is not obliged to accept
any assignment offered by the first Respondent. Clause 10 of the contract deals with
termination, and is in the following terms:
“10 Termination
[2021] FWC 1745
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10.1 Termination of Assignment: A Client may ask that your Assignment cease immediately. In
this event, Randstad endeavours to provide you at least one hour’s notice (or one hour’s payment in lieu
of notice). You will remain on Randstad’s books, and we will use reasonable endeavours to find
alternative suitable Assignments for you (unless your employment is terminated by Randstad in
accordance with clause 10.2, or you no longer wish to be represented by Randstad).
10.2 Termination of Employment: In cases of serious misconduct Randstad may dismiss you
without giving notice or making payment in lieu of notice. Your employment may be terminated
immediately by Randstad for:
(a) serious and/or repeated breaches of Contract of Service or Assignment Details;
(b) breach of Randstad or Client policy or procedures;
(c) serious and/or wilful misconduct;
(d) dishonesty; or
(e) conduct which adversely affects the reputation or business of Randstad.”
[18] The document tendered by the first Respondent indicates that the Applicant signed the
contract of employment on or around 19 August 2019 and was assigned to the second
Respondent in that month. Prior to commencing employment with the first Respondent, the
Applicant was employed by another labour hire company from February 2016 and was also
assigned by that company to perform work for the second Respondent. The Form F8A
Response filed by the second Respondent states that in the three months prior to 10 August
2020, the Applicant was absent from work due to a leg injury he had suffered while playing
football. While there is a suggestion in the material filed by the Applicant that he had been on
workers compensation as result of this injury this is not clear from the evidence. Further, the
Applicant makes no mention in his evidence of the duration of his absence or that he had only
returned to work on 10 August 2020.
[19] The incident which led to the Applicant ceasing to perform work at the premises of the
second Respondent was set out in his statement of evidence as follows. The Applicant stated
that on 11 August 2020, while at work (a day after returning from an absence due to a leg
injury according to the Form F8A filed by the second Respondent) the Applicant was walking
when a work colleague and team leader kicked a football towards the Applicant. The
Applicant stated that he was not expecting this and as he went to kick or block the ball, he
slipped and fell on wet grass, injuring his left groin.
[20] The Applicant stated that he did not know that he had been injured and when he
discovered his left groin injury “later on” he reported it to his team leader. The Applicant
also said that on an undisclosed date, he received a telephone call from a Co-ordinator of the
second Respondent who said words to the effect that: “This is not a good look for Council.
You’ve just returned from work after being away due to an injury and now this has happened.
We are going to have to let you go.” The Form F8A filed by the second Respondent contains
a denial that this statement was made and indicates that it formed the view that the Applicant
was attempting to kick the football as if he was kicking a goal when the incident occurred and
that he had disregarded instructions to take care not to reinjure his leg and to report any
incidents. It is also apparent that the second Respondent formed the view that the Applicant
intended to conceal the incident in breach of its policies.
[21] According to the Applicant’s statement, he called Ms Tulemau on 17 August 2020 and
told her what had occurred and that he had been informed that he was no longer employed.
The Applicant also stated that he asked Ms Tulemau whether there was other work available
and was told that Ms Tulemau had asked her manager and there was nothing that the first
[2021] FWC 1745
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Respondent could do. The Applicant disputed that Ms Tulemau told him that he was still
employed or that he had to provide a full medical clearance before he could be redeployed.
The Applicant maintained that he did not resign from his employment or indicate to Ms
Tulemau or anyone else that he no longer wished to be represented by the first Respondent.
The Applicant also stated that had he known that he could have continued working, he would
have provided a medical clearance as soon as he was able as he was not in a financial position
to remain unemployed.
[22] The Applicant set out in his statement an email exchange he engaged in with Ms
Tulemau commencing on 19 August 2020. That exchange was not appended to a witness
statement but was admitted into evidence at the hearing with the consent of both parties2. It
commences with an email from the Applicant sent at 3.20 pm on 19 August 2020 in the
following terms:
“Hey Tusi can I get sent me The letter of termination my contract I had with Randstad and BCC plz”
[23] At 9.03 am on 20 August 2020, Ms Tulemau responded stating:
“Hi Anthony,
No worries, I will make contact with our payroll regarding the letter and they will send through a
separation certificate. Any issue do not hesitate to contact me on [phone number]”
[24] At 9.04 am on 24 August the Applicant emailed Ms Tulemau stating:
“Hey um I haven’t received anything from payroll or anyone yet regarding my contracts or termination
form is there any way I can get that soon plz”
[25] Ms Tulemau responded at 11.06 am on 25 August 2020 advising that she had received
confirmation that the material requested by the Applicant had been sent to him. The
Applicant’s response at 11.18 am on that date was: “Yep got it cheers.” A pay advice slip for
the week 8 to 14 August 2020 was also tendered.3 Further, an Employment Separation
Certificate sent by the first Respondent to the Applicant was tendered. The Certificate
indicates that it was issued on 25 August 2020 and that the Applicant was employed from 5
August 2019 to 11 August 2020. The certificate also indicates that the reason for the
separation is “end of season or contract” and a box is checked to the effect that a claim for
workers compensation has not been made or is not likely to be made.
[26] Also tendered with the agreement of the parties was an email sent to the first
Respondent on 25 August 2020 at 11.32 am by Ms Demarco on behalf of the Applicant
asserting that the details on the separation certificate were incorrect and asserting that the
Applicant’s termination was effected by the second Respondent because he was injured at the
workplace and/or because he intended to make or made a workers’ compensation claim.4 A
response to that letter sent on 28 August 2020 by Ms McMillan on behalf of the first
Respondent stated that:
2 Exhibit 2.
3 Exhibit 4.
4 Exhibit 5.
[2021] FWC 1745
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“the candidate Anthony Hyde started with Ranstad 05/08/2019, please find a report of his hours and
wages attached.
We will be submitting a certificate to include the information regarding the workers’ compensation
payments.”5
[27] Ms Tulemau (who at the time of hearing was no longer employed by the Respondent)
gave oral evidence at the hearing in which she adopted an email she sent to the first
Respondent’s representative on 12 November 2020, headed “Letter of Statement” and swore
that its contents were true and correct. I accepted this email as Ms Tulemau’s evidence-in-
chief. Ms Tulemau stated that on 12 August 2020 she was informed by a co-ordinator of the
second Respondent about the incident involving the Applicant. Ms Tulemau said that she
contacted the Applicant by telephone on 12 August and asked him what had occurred and
why he had not reported the incident to the first Respondent. According to Ms Tulemau, the
Applicant told her that it was a silly reason, he was just coming back from Work Cover and
did not want to report the incident. Ms Tulemau stated that she told the Applicant he would
need a full medical clearance to go back to work and the Applicant agreed that he would see
his doctor the next day.
[28] Ms Tulemau states that she received an email from the Applicant at 6.08 pm on
Sunday 16 August 2020 stating that he had gone to the doctor on Saturday and the doctor
could not give him a full clearance. Ms Tulemau did not tender this email. In the Form F8A
Response filed by the second Respondent, it was asserted that the Applicant sent a text
message to the second Respondent’s co-ordinator on 17 August 2020 advising that he could
not get a clearance from his doctor “yesterday” and that he would try again “tomorrow”.
[29] Ms Tulemau also said that she made contact with the Applicant by telephone on 17
August 2020 and reiterated that he would require a full medical clearance to return to work
and that it needed to come through to her first. On 17 August 2020 Ms Tulemau received an
email and a telephone call from a manager of the second Respondent in relation to the
Applicant’s assignment with the second Respondent. Ms Tulemau did not tender this email
but provided evidence of its terms by virtue of setting out its contents in her statement and in
her contemporaneous notes of the conversation she had with the Applicant.
[30] Also on 17 August 2020, Ms Tulemau had a telephone discussion with the Applicant
during which she asserts that he told her that a manager of the second Respondent had
terminated the Applicant’s assignment. Ms Tulemau said that during that discussion she read
out to the Applicant the contents of the email she had received on 17 August 2020 from the
manager of the second Respondent, which stated:
“We have decided it best that Anthony does not return to his position at BCC. The fact that he failed to
report the incident, evade from the truth during the investigation and failed to see a GP to treat the
injury within an acceptable time frame is in breach of the several BCC zero harm policies.”
[31] As previously noted, neither Ms Tulemau nor the first Respondent tendered this email.
The text of the email was set out in the Form F8A Response filed by the second Respondent
in substantially the same form as set out in Ms Tulemau’s statement. Ms Tulemau said that
she told the Applicant that his assignment with the first Respondent had ended and the matter
was now out of her hands, but that the Applicant was “still employed under Randstad, and we
5 Exhibit 6.
[2021] FWC 1745
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will look for alternative work with other consultants, but he will still need to provide the full
clearance before we can place him out to any of our sites.” Ms Tulemau also stated that the
Applicant advised that he was going to make a workers’ compensation claim and raised
various allegations about the conduct of the second Respondent’s manager.
[32] On 19 August 2020, Ms Tulemau received an email from the Applicant requesting
what she described as a termination letter. Again, Ms Tulemau did not tender the email but I
assume that it is the email sent by the Applicant at 3.20 pm on 19 August 2020 and tendered
as part of his material. Ms Tulemau said that she contacted the Applicant to ask about his
request and to “explain the differences between termination and separation”. Ms Tulemau
also said:
“I told Mr Hyde his employment with Randstad is not terminated, it’s his assignment with Brisbane
City Council that has ended, he is still employed under Randstad and we will liaise with other
consultants within Randstad for other work, but we need him to send through a full clearance for us to
be able to put him through to other work, I then asked Mr Hyde if he understands , Mr Hyde says to the
effect of, Yes I understand but I need this letter so I can take it to centrelink to get some money, I then
let Mr Hyde know, should he request for a separation certificate, it means that he no longer wants
Randstad to represent him for other vacancies, Mr Hyde says he understands he needs the letter to take
it to centrelink, because centrelink requires this letter in order for him to claim money.”
[33] Ms Tulemau also tendered notes of her discussions with the Applicant which she had
entered into the first Respondent’s candidate management system at or around the time of the
discussion. These notes are date and time stamped. The notes are consistent with Ms
Tulemau’s evidence in these proceedings.
[34] Ms Tulemau emailed the Applicant advising that she would make contact with the first
Respondent’s payroll department regarding the letter he sought and that the Applicant should
contact her if he had any questions. Ms Tulemau said that the only contact she received from
the Applicant after this date was via email in which the Applicant informed her that he was
still waiting for the documents he had requested.
[35] In cross-examination, Ms Tulemau maintained that when she made contact with the
Applicant she explained to him that: “he is not terminated by Randstad, it’s only his
assignment with Brisbane City Council but he is still employed by Randstad – so it’s the letter
he’s requesting was a separation certificate which he agreed.”6 In response to a question as
to why the Applicant’s employment had not been terminated by the first Respondent, Ms
Tulemau maintained that his assignment with the second Respondent was terminated but that
he was still employed “under Randstad.”7 Ms Tulemau agreed that when Randstad took over
the contract with the second Respondent the Applicant was a “transition candidate” as he was
working in the same role for the previous labour hire provider to the second Respondent.
[36] After saying that the Applicant had been terminated from the second Respondent and
that he understood he no longer had a job, Ms Tulemau said in her oral evidence:
“ … So when we had that discussion about the email that he sent through I wanted him to be clear that
he is not terminated by Randstad, his contract with Brisbane City Council has been terminated. He is
still employed under Randstad where we will look at other work but just not from Brisbane City
6 Transcript of proceedings 18 December 2020 PN210.
7 Transcript of proceedings 18 December 2020 PN219.
[2021] FWC 1745
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Council. That contract between him and the Council and Brisbane City Council is now out of my
hands. I cannot say that - I cannot get him back into that contract to which then he responded that he
needs a separation certificate because he needs to go back into Centrelink to get some money. I then
explained to him once that separation certificate is handed to him it means that he no longer (indistinct)
Randstad to be his - what was the word, represented in finding him work elsewhere to which he
understood and I said to him, 'If anything changes,' you know, he will then - he can always contact us
and we can do the whole recruitment process again but he needs to re registered.”8
[37] Ms Tulemau also said that once an employee requests a Separation Certificate and the
first Respondent processes that certificate, it means that Randstad no longer represents the
employee for the purposes of finding work. Ms Tulemau further stated that she told the
Applicant that if anything changed in the future and he wanted a job with Randstad again, he
would need to go through the whole re-registration. Ms Tulemau had the following exchange
with the Applicant’s representative in cross-examination:
“Right. So that in his employment was terminated then? --- So it ended when I explained to him about
the separation certificate and he agreed that he - that's what he needs and that's what he wants.
But you said before that he was still continuing though? --- Yes. Before he requested for the separation
certificate he was still continuing as one of our employees.
Right? --- But then when I made contact with him and I explained to him because he sent me an email
saying he's after a termination letter, I had to make sure that he understood he is not terminated by
Randstad which is his employer. He is terminated by our client which is the host and that - explained to
him again that should he, you know, request for a separation certificate it means that he no longer wants
Randstad, his employer to represent him for other work.
Right? ---- So as soon as he agreed that yes, that's what he wants, you know, that request was then sent
through to payroll and as soon as that went through to him that was when his work with us ended as per
his request.”9
[38] In response to the proposition that there was a lack of clarity about whether the
document requested by the Applicant was a separation certificate or a letter of termination,
Ms Tulemau said that she explained the document to the Applicant and he stated that he
needed a letter to take to Centrelink to get money.10
[39] Mr Ramakrishnan gave evidence about the notes entered by Ms Tulemau into the first
Respondent’s Candidate Management System. The system is an electronic record in which
notes about interactions between the first Respondent and candidates it deploys to perform
work for clients. Mr Ramakrishnan’s evidence is that once the notes are entered into the
system they are date and time stamped and cannot be deleted, changed or updated, other than
by the addition of further comments which will not alter those already entered into the system.
Mr Ramakrishnan gave oral evidence in which he repeated the evidence in his email
statement and adopted that statement.11 Mr Ramakrishnan was available for cross-
examination but was not required by the Applicant’s representative.
8 Transcript of proceedings 18 December 2020 PN234.
9 Transcript of prcoeedings 18 December 2020 PN238 – 241.
10 Transcript of proceedings 18 December 2020 PN275.
11 Exhibit 8 – Statement of Daiju Ramakrishnan.
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[40] Ms Horne’s evidence was set out in two witness statements and can be summarised as
follows. In her first statement,12 Ms Horne said that on Monday 17 August 2020 she had a
telephone conversation with Ms Tulemau in relation to an email received from the second
Respondent. Ms Horne provided Ms Tulemau with advice on how to approach a telephone
conversation with the Applicant. Ms Horne said that she was told by Ms Tulemau that the
second Respondent had requested that the Applicant not return to its site due to not reporting
an incident in breach of its “Zero Harm Policy”. In response, Ms Horne told Ms Tulemau to
contact the Applicant and let him know about the feedback from the host client and that
although this assignment had ended, the Applicant’s employment with the first Respondent
remained and he would be connected with a consultant through the industrial team and
endeavours to find him an alternate assignment would be made. In her second statement13
Ms Horne confirmed Mr Ramakrishnan’s statement and his evidence about the first
Respondent’s Candidate Management System. Further, Ms Horne tendered copies of the
entries Ms Tulemau had made in the Respondent’s Candidate Management System.
[41] Under cross-examination Ms Horne said that Ms Tulemau did not send her a copy of
the email from the second Respondent in relation to ending the Applicant’s assignment. Ms
Horne also said that during her discussion with Ms Tulemau she advised Ms Tulemau that she
needed to make clear to the Applicant that his employment with the first Respondent still
stands but that his assignment with the second Respondent had ended.14 Ms Horne also said
that it was not the first Respondent’s practice to end employment when an assignment ended
but instead the priority is to send a worker to an alternative assignment. In response to a
question about what would normally occur if the first Respondent terminated an employee’s
employment, Ms Horne said:
“ … Yes. We would provide a termination letter that would outline what has happened, what
misconduct has occurred and what process we have taken to meet with that person, give them an
opportunity to respond, what their outcome was, what the decision was and then if there was
misconduct or a breach of policy or procedure we would then terminate them from Randstad.
So you would only provide a letter of termination if you were terminated for misconduct? Generally,
yes, depending on what the matter was but then any termination letters are drafted through myself, it's
not something that our consultants have access to.”15
[42] In relation to the Employment Separation Certificate issued to the Applicant by the
first Respondent, Ms Horne said that there is an option on the Certificate to tick a box stating
the employee has been “dismissed or terminated” and that option was not taken. Instead, an
option was ticked indicating that the Applicant’s employment had ended because the contract
he was working under with the second Respondent had ended. Ms Horne maintained that this
did not mean that the Applicant was dismissed. In response to the proposition that the box
indicating “resignation” could have been selected, Ms Horne said that she was not aware that
there was such an option but maintained that the first Respondent did not dismiss the
Applicant and that Ms Tulemau told him that the issuing of the Employment Separation
Certificate would indicate that the Applicant had chosen to end his employment with the first
Respondent.
12 Exhibit 9 – Statement of Tracey Horne.
13 Exhibit 10 – Additional Witness Statement of Tracey Horne.
14 Transcript of proceedings 18 December 2020 PN352.
15 Transcript of proceedings 18 December 2020 PN355 – 356.
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[43] The Form F8A Response filed by the second Respondent indicates that the Applicant
sent a text message to the second Respondent’s co-ordinator on 12 August at 5.20 am,
advising of his injury. The second Respondent also said it its Form F8A Response that the
Applicant sent a text message to the co-ordinator on 17 August 2020 stating that he could not
get a clearance from his doctor “yesterday” and was going to try “tmz” which I assume to be
an abbreviation for tomorrow. The second Respondent further stated in the Form F8A that its
co-ordinator sent an email to Ms Tulemau on 17 August 2020 at 11.45 am in the following
terms:
“After speaking with Chris this morning re last week’s incident involving Anthony Hyde, we have
decided it best that Anthony does not return to his position with BCC. The fact that he failed to report
the incident, evade from the truth during the investigation and fail to see a GP to treat the injury within
an acceptable time frame is in breach of the BCC zero harm policy. Can you please inform Anthony of
this decision and ask that he return his security access care either to yourself or back to Perrin Park
Depot ASAP.”
[44] That statement in the Form F8A filed by the second Respondent is consistent with Ms
Tulemau’s evidence about this email.
[45] In closing submissions Ms Demarco on behalf of the Applicant submitted that the
Applicant was told on 11 August 2020 by a representative of the second Respondent that he
was no longer required because he had made a work cover claim or had suffered a workplace
injury. Following this the Applicant was dismissed by the first Respondent as evidenced by
the Employment Separation Certificate provided on 25 August stating that the Applicant’s
employment had ended on 11 August 2020 as a result of the end of a season or contract. Ms
Demarco maintained that the emails from the Applicant did not request an Employment
Separation Certificate but rather asked for a termination letter and submitted that this was on
her advice. This was said to indicate that the Applicant had not sought to cease employment
with the Respondent.
[46] In closing submissions for the first Respondent, Mr Lewis contended that the present
case was a simple factual matter requiring the resolution of the question whether the first
Respondent dismissed the Applicant by initiating the termination of the employment
relationship or engaging in conduct evidencing an intention that the employment relationship
should end. It was submitted that the evidence established that the Applicant was informed
by Ms Tulemau that he was still employed and that he would be redeployed to another client
if he provided a medical clearance. Despite being informed of this, the Applicant requested an
Employment Separation Certificate after being informed that the impact of being provided
with this document would be that he would no longer be considered an employee by the
Respondent.
[47] Mr Lewis also submitted that while the evidence of the first Respondent was not
“perfect” the Commission could consider the statement of Ms Horne – an experienced human
resources manager – about what she told Ms Tulemau to say to the Applicant during their
discussion. Weight should also be placed on Ms Tulemau’s evidence and the
contemporaneous notes Ms Tulemau tendered, supporting her version of the discussion.
Reference was also made to the evidence of Mr Ramakrishnan establishing that those notes
were contemporaneous and could not have been altered at a later date.
[2021] FWC 1745
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[48] According to Mr Lewis’ submission, consideration should also be given to the
Applicant’s employment contract which evidenced the basis upon which he was employed
including the casual nature of his employment. While conceding that the Employment
Separation Certificate issued by the first Respondent contained two factual inaccuracies –
stating incorrectly that a workers compensation claim had not been made and that
employment had ended due to the end or season or contract – the Certificate had been
submitted by customer service staff not trained in human resource management. Mr Lewis
also contended that at the time the Certificate was issued, the Applicant’s claim for workers
compensation had been refused.
Approach to deciding whether a person has been dismissed
[49] The application in the present case is made under s. 365 of the FW Act, which
relevantly provides:
“365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of
the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”
[50] In Coles Supply Chain v Milford16 the Full Court of the Federal Court held that a
dispute about whether a person has been dismissed raises an antecedent issue going to the
existence of the Commission’s authority to compel an employer to participate in its
conciliation processes. The Full Court also held that when an application is purportedly
lodged under s. 365 of the FW Act, it is open to the Respondent to assert that there is no
dismissal, giving rise to a dispute on that question. Such a dispute falls to be determined not
under s. 368, but under s. 365 itself and must be resolved before the powers under s. 368 are
exercised.
[51] Section 368 of the FW Act requires that if an application is made under s. 365, the
Commission must deal with that dispute (other than by arbitration) and if satisfied that all
reasonable steps to resolve the dispute (other than by arbitration) have been or are likely to be
unsuccessful, must issue a certificate to that effect.
[52] In the present case, a conciliation conference has been conducted and the dispute has
not been resolved. The Applicant seeks that the Commission issue a certificate pursuant to s.
368 and the first Respondent maintains that the Applicant was not dismissed and that the
Commission is therefore not empowered to issue a certificate. Consistent with the decision of
the Full Court in Milford it is necessary for the question of whether the Applicant was
dismissed to be determined. A certificate cannot be issued under s. 368 of the FW Act unless
the Commission finds that the Applicant was dismissed.
16 [2020] FCAFC 152.
[2021] FWC 1745
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[53] Section 386 of the FW Act deals with the meaning of the term “dismissed” and is in
the following terms:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s
initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of
conduct, or a course of conduct, engaged in by his or her employer.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time,
for a specified task, or for the duration of a specified season, and the employment has
terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason,
limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or
duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in
paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind
is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”
[54] Section 12 of the FW Act in relation to the definition of “dismissed” refers to s. 386 of
the FW Act.
[55] As previously stated, s. 365 of the FW Act applies when a person is “dismissed”. In
Morris v Allied Express Transport Pty Ltd17 Smith J considered whether the term “dismisses”
in s. 342 of the Act had the same meaning as the term “dismissed” in s. 386. His Honour did
not resolve the issue but expressed a tentative view that the definition in s. 12 was relevant
and the fact that s. 342 used another form of the verb did not matter. Reference in this regard
was also made to s. 18 of the Acts Interpretation Act 1901 (Cth) which provides that:
“In any act where a word or phrase is given a particular meaning, other parts of speech and grammatical
forms of that word or phrase have corresponding meanings.”
17 [2016] FCCA 1589
[2021] FWC 1745
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[56] His Honour also stated that subject to there being some contrary intention, the
meaning of “dismisses” is to be determined by reference to s. 386 of the FW Act and that
there was no contrary intention merely in the fact that s. 386 appears in Part 3 – 2 which deals
with unfair dismissal a matter over which the court does not have jurisdiction.18 Section 365
of the FW Act uses the same term “dismissed” as defined in s. 386 of the FW Act and the
approach I have followed in determining the present matter is to consider whether the
Applicant was dismissed within the meaning in s. 386.
[57] The general approach to considering whether an employee has been dismissed as
defined in s. 386 of the FW Act is set out in the Decision of a Full Bench of the former
Australian Industrial Relations Commission in O’Meara v Stanley Works Pty Ltd19 where it
was stated that:
“[21] In this Commission the concepts have been addressed on numerous occasions and by a
number of Full Benches. In Pawel v Advanced Precast Pty Ltd (Pawel) a Full Bench said:
‘[13] It is plain that the Full Court in Mohazab considered that an important feature
in the question of whether termination is at the initiative of the employer is whether
the act of an employer results directly or consequentially in the termination of the
employment and that the employment relationship is not voluntarily left by the
employee. However, it is to be noted that the Full Court described it as an important
feature. It plainly cannot be the only feature. An example will serve to illustrate this
point. Suppose an employee wants a pay rise and makes such a request of his or her
employer. If the employer declines and the employee, feeling dissatisfied resigns, can
the resignation be said to be a termination at the initiative of the employer? We do
not think it can and yet it can be said that the act of the employer i.e. refusing the pay
rise, has at least consequentially resulted in the termination of the employment. This
situation may be contrasted with the position where an employee is told to resign or
he or she will be terminated. We think that all of the circumstances and not only the
act of the employer must be examined. These in our view, will include the
circumstances giving rise to the termination, the seriousness of the issues involved
and the respective conduct of the employer and the employee. In the instant case the
uncontested factual findings are that the applicant had for almost the whole of his
employment performed welding duties; that there was no objective threat to his
health and safety involved in the requirement that he undertake welding duties so
long as it was not on a continuous basis and that the welding he was required to do
was not continuous.’ ”
[58] The Full Bench in O’Meara also cited an earlier Decision of a Full Bench in ABB
Engineering Construction Pty Ltd v Doumit20 where it was observed that:
“Often it will only be a narrow line that distinguishes conduct that leaves an employee no real
choice but to resign employment, from conduct that cannot be held to cause a resultant
resignation to be a termination at the initiative of the employer. But narrow though it be, it is
important that that line be closely drawn and rigorously observed. Otherwise, the remedy
against unfair termination of employment at the initiative of the employer may be too readily
invoked in circumstances where it is the discretion of a resigning employee, rather than that of
the employer, that gives rise to the termination. The remedies provided in the Act are directed
to the provision of remedies against unlawful termination of employment. Where it is the
immediate action of the employee that causes the employment relationship to cease, it is
18 Ibid at paragraph 116 – 117.
19 [2006] AIRC 496 (PR973462).
20 Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996).
[2021] FWC 1745
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necessary to ensure that the employer’s conduct, said to have been the principal contributing
factor in the resultant termination of employment, is weighed objectively. The employer’s
conduct may be shown to be a sufficiently operative factor in the resignation for it to be
tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily
be conceived to be a termination at the initiative of the employer. The validity of any
associated reason for the termination by resignation is tested. Where the conduct of the
employer is ambiguous, and the bearing it has on the decision to resign is based largely on the
perceptions and subjective response of the employee made unilaterally, considerable caution
should be exercised in treating the resignation as other than voluntary.”
[59] The Full Bench in O’Meara went on to observe that:
“In our view the full statement of reasons in Mohazab which we have set out together with the
further explanation by Moore J in Rheinberger and the decisions of Full Benches of this
Commission in Pawel and ABB Engineering require that there to be some action on the part
of the employer which is either intended to bring the employment to an end or has the
probable result of bringing the employment relationship to an end. It is not simply a question
of whether “the act of the employer [resulted] directly or consequentially in the termination of
the employment.” Decisions which adopt the shorter formulation of the reasons for decision
should be treated with some caution as they may not give full weight to the decision in
Mohazab. In determining whether a termination was at the initiative of the employer an
objective analysis of the employer’s conduct is required to determine whether it was of such a
nature that resignation was the probable result or that the appellant had no effective or real
choice but to resign.” (footnotes omitted)
[60] The following consideration by Deputy President Saunders in Nathan Jackson v
Mahmoud Hasan Abulamoun21 is also a useful discussion of the concept of termination at the
initiative of an employer:
“[37] A dismissal takes effect when the employment relationship has ended. The termination of the
employment relationship is a different concept from the termination of an employment contract.
[38] The employment relationship, in Australia, operates within a legal framework defined by
statute and by common law principles, informing the construction and content of the contract of
employment.
…
[40] Because the question of whether an employment relationship continues to exist is a question of
fact, it is necessary to consider all the relevant circumstances to determine whether there has been a
communication of a dismissal by words or conduct. The range of facts or factors which may need to be
examined to answer the question of whether an employment relationship has ceased to exist by reason
of the communication of a dismissal by words or conduct will be determined by the circumstances of a
particular case, and may include, without limitation, whether the employee is being paid a wage or other
benefits or entitlements, whether the employee is attending or performing work for the employer,
whether the employee is being rostered to work or offered work, whether, in the case of a business
employing casuals, the employer is rostering other employees to do work in the same role as the
applicant in a particular case, whether the employer is exercising, or has the ability to exercise, control
over the execution of work by the employee, whether either party has communicated to the other party
a decision to terminate the relationship, and the terms of the employment contract.
[41] The question of whether an employment relationship has ceased to exist does not depend upon
the parties’ subjective intentions or understandings. Rather, it depends upon what a reasonable person in
the position of the parties would have understood was the objective position. What matters is what each
party by words and conduct would have led a reasonable person in the position of the other party to
believe.
21 [2020] FWC 4056.
[2021] FWC 1745
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[42] The expression ‘termination at the initiative of the employer’ is a reference to a termination
that is brought about by an employer and which is not agreed to by the employee. In circumstances
where the employment relationship is not left voluntarily by the employee, the focus of the inquiry is
whether an action on the part of the employer was the principal contributing factor which results,
directly or consequentially, in the termination of the employment. There must be action by the
employer that either intends to bring the relationship to an end or has that probable result.”
[61] In the present case, it is also necessary to consider which party bears the onus of
establishing that there was a dismissal. The approach to determining which party bears the
onus of establishing a particular matter was expressed by a Full Bench of the Commission in
Piyush Jain v Infosys Limited T/A Infosys Technologies Limited (Jain) in the following terms:
“In most cases the question of where an evidentiary onus (or something analogous to it) resides will be
answered by asking; in relation to each matter about which the Commission must be satisfied, which
party will fail if no evidence or no further evidence about that matter were given? The evidentiary onus
will generally be the party that will fail in that event.”22
[62] As the Full Court of the Federal Court stated in Milford a dispute in relation to
whether a person making an application under s. 365 of the FW Act has been dismissed, is an
antecedent dispute going to the entitlement of the person to make the application.
Accordingly, the Applicant in the present case bears the onus of establishing that he was
dismissed notwithstanding that the Respondent raised the jurisdictional objection.
Consideration
[63] The Applicant’s evidence and submissions in relation to when he claims to have been
dismissed and on what basis, are not clear and are somewhat contradictory. The material filed
by the first Respondent was not of much assistance in elucidating matters and I have pieced
together the series of events as best I can from the material before me. As previously stated, to
fill in gaps in the evidence, I have considered information set out in the Form F8 Application
and the Form F8A Response filed by the second Respondent. I am fortified in taking this
approach by the fact that these documents were respectively signed by solicitors.
[64] The Applicant does not assert that he resigned, nor that he was forced to do so. As
previously noted, the submissions made on behalf of the Applicant were not of assistance
given that contrary to the Decision of the Full Court of the Federal Court in Milford the
submissions contended that the Commission was not required to consider whether the
Applicant had been dismissed and basically glossed over this issue and contended that the
Commission simply needed to be satisfied that the employment had ended in order to dismiss
the jurisdictional objection.
[65] Further, the Applicant failed to attend and give evidence to the Commission
notwithstanding that he was given two opportunities to do so and his evidence could have
been given by telephone. As a result, it is difficult for the Applicant to meet the onus he bears
to establish that he was dismissed. The case for the Applicant is not assisted by
inconsistencies his statement and other documentation filed in the proceedings, which could
not be addressed or put to the Applicant for comment due to his failure to attend the hearing.
I also note that the Applicant filed a witness statement on 17 December – one day prior to the
22 [2014] FWCFB 5595.
[2021] FWC 1745
17
hearing – at which point he had been provided with the statements and other documents that
the Respondent intended to rely on at the hearing and could have responded to assertions in
that material that he did not agree with.
[66] The Applicant asserts in his Form F8 Application that he was dismissed on 11 August
2020 and that he submitted a Workers Compensation claim on 12 August 2020. The Form F8
also asserts that the Applicant was dismissed because he made a claim for Workers
Compensation. This is somewhat problematic given that the alleged dismissal is asserted to
have occurred prior to the exercise of the workplace right on which the application is based.
Other than an assertion by the first Respondent’s representative in closing submissions that
the claim for workers compensation was refused and that this was not known at the time the
first Respondent submitted the Employment Separation Certificate, there is no evidence about
the workers compensation claim other than it was made.
[67] The Applicant also stated in the Form F8 that he received an Employment Separation
Certificate on 25 August 2020 stating that his employment was terminated due to end of
season or contract. In oral submissions at the hearing, it was contended that the Applicant did
not request the Certificate and simply requested a letter confirming that his employment had
been terminated. Absent the Applicant giving evidence at the hearing this contention cannot
be tested and it is contradicted by the evidence of Ms Tulemau who did appear at the hearing,
and who maintained that the Applicant requested an Employment Separation Certificate to
enable him to obtain Centrelink benefits, in the full knowledge that the first Respondent
would thereby consider that he was ending his employment relationship with the first
Respondent.
[68] I have considered the question of whether the Applicant was dismissed based on both
limbs in s. 386(1) of the FW Act. I commence with an examination of the context in which
the employment relationship existed. At the time his employment ended, the Applicant had
performed work for the second Respondent for over four years. However, for the period from
February 2016 to August 2019 the Applicant worked for another labour hire provider and
worked for the first Respondent for a period of 18 months.
[69] I accept that the Applicant signed a contract of employment with the first Respondent
which stated that he was a casual employee who would undertake assignments for clients and
that the first Respondent could not control the length of the assignments. The nature of the
Applicant’s contract of employment is relevant to the consideration of whether he was
dismissed by the first Respondent. I also note that the Applicant there is no evidence of any
employment relationship between the Applicant and the second Respondent and the Applicant
does not assert that he had an employment relationship with the second Respondent.
[70] The Applicant produced no evidence to support the assertion that he was dismissed on
11 August 2020, and I do not accept it. I accept that the Applicant’s employment ended after
his discussion with Ms Tulemau on 17 August 2020. Notwithstanding the failure of the first
Respondent to tender the email sent to Ms Tulemau on 17 August 2020, I accept that on that
date, Ms Tulemau received an email from the co-ordinator of the second Respondent advising
that the second Respondent did not want the Applicant to return to his position with the
second Respondent. I also accept that prior to this exchange, Ms Tulemau was informed that
there had been an incident involving the Applicant and that this information was provided on
or around 12 August 2020.
[2021] FWC 1745
18
[71] Further, I accept that up until at least 17 August 2020, the Applicant was
communicating with the first and second Respondents in relation to his inability to obtain a
medical clearance. This is entirely consistent with the Applicant’s own statement that he
made a workers compensation claim on 12 August 2020 in relation to the injury he sustained
on 11 August. The Applicant’s conduct and communications with the first and second
Respondents between 11 August and 17 August 2020 are inconsistent with employment
ending on 11 August 2020.
[72] I do not accept that the email sent by the second Respondent on 17 August 2020 ended
the employment relationship between the Applicant and the first Respondent. Rather, in
accordance with the Applicant’s contract of employment, it placed the Applicant in a position
where the first Respondent’s client (the second Respondent) had requested that he be removed
from its workplace. At that point, the Applicant’s employment relationship with the first
Respondent remained on foot. The first Respondent could have opted to contest the removal
and have discussions with the second Respondent in relation to the decision. Alternatively,
the second Respondent could have taken steps to seek to reassign the Applicant to another
client.
[73] There is no evidence that the first Respondent sought to dispute the removal of the
Applicant by the second Respondent. It is arguable that the first Respondent should have had
such a discussion, particularly in the context of the circumstances in which the second
Respondent took this step. Neither Ms Tulemau nor Ms Horne was cross-examined on this
subject. In any event, the question I am required to decide is whether the Applicant was
dismissed because his employment was terminated by the first Respondent or whether the
first Respondent engaged in a course of conduct that forced the Applicant to resign.
[74] In relation to the first limb of s. 386(1), I am unable to be satisfied that the first
Respondent terminated the Applicant’s employment. In his witness statement, the Applicant
said that he was told by Ms Tulemau on 17 August 2020 that he was no longer employed and
then states that he asked Ms Tulemau whether there was other work available. That question
is more consistent with the Applicant understanding that he was assigned to work at the
premises of the second Respondent but could be relocated to another of the first Respondent’s
clients if that assignment ended, rather than an understanding by the Applicant that he had
been dismissed because his assignment with the second Respondent had ended.
[75] It is also the case that Ms Tulemau denied that she told the Applicant that he had been
dismissed and maintained – including under cross-examination – that she had emphasised to
the Applicant that while his assignment with the second Respondent had ended, he was still
employed by the first Respondent and subject to providing a medical clearance, attempts
would be made to place him at another site. Ms Tulemau’s evidence was also supported by
the contemporaneous notes she included on the Respondent’s Candidate Management
System. Consistent with the evidence of Mr Ramakrishnan those notes cannot be altered once
they are entered into the system. Given Ms Horne did not participate in the discussion
between Ms Tulemau and the Applicant on 17 August 2020, her evidence about what she told
Ms Tulemau to say to the Applicant during that discussion does not establish that this is what
Ms Tulemau said.
[76] On balance, I accept the evidence of Ms Tulemau and find that she did not dismiss the
Applicant nor inform him that he had been dismissed. I also consider that the employment
separation certificate does not support the Applicant’s contention that he was dismissed at the
[2021] FWC 1745
19
initiative of the Respondent. The separation certificate states that the employment of the
Applicant ended due to the end of season or contract. Generally, this option is selected by an
employer in circumstances where an employee has been employed for a specified task or
tasks or a specified period or season and employment has ended upon completion of the tasks
or the end of the specified period or season. In such cases the employment ends in
accordance with the contract and the employee is not dismissed at the initiative of the
employer. While I accept that the reason given by the first Respondent for the separation of
the Applicant was erroneous, the Certificate is not evidence that the first Respondent
dismissed the Applicant.
[77] In all of the circumstances there is insufficient evidence upon which I could
reasonably be satisfied that the first Respondent dismissed the Applicant by terminating his
employment within the meaning in s. 386(1) of the FW Act. In relation to s. 386(2) I accept
that the Applicant’s employment ended when he sought an Employment Separation
Certificate. I do not accept that the act of providing the Applicant with the Certificate that he
had requested, constituted the termination of his employment by the first Respondent.
[78] The Applicant denies that he resigned his employment. Notwithstanding this I have
considered whether the first Respondent initiated the ending of the Applicant’s employment
by putting him in a position where he had no option but to request an Employment Separation
Certificate and then by accepting that request as a resignation in circumstances where the
Applicant had not in fact resigned. After reviewing the evidence, I am also unable to accept
that this is what transpired, for the following reasons.
[79] The Applicant did not dispute that he requested the Employment Separation
Certificate. His emails in this regard, state that he is requesting a letter of termination. When
Ms Tulemau caused an Employment Separation Certificate to be sent to the Applicant he did
not make further contact with her indicating that this document was not what he was
requesting. An Employment Separation Certificate is a document that is necessary for person
whose employment has ceased, to obtain Centrelink benefits. The Applicant did not dispute
that this is the purpose for which he sought the Employment Separation Certificate. This is
consistent with the Applicant knowing the significance of the Certificate and that it indicated
his employment had ended. The Applicant did not dispute this part of Ms Tulemau’s
evidence in his statement filed on 17 December 2020.
[80] The Applicant’s statement that had he known he could have provided a full medical
clearance and remained employed, is inconsistent with the fact that he had the relevant
discussion with Ms Tulemau on 17 August 2020 in circumstances where he had already made
a claim for workers compensation on 12 August and had informed the second Respondent that
his doctor would not give him a clearance.
[81] In this regard, I note that Ms Tulemau claimed to have had a discussion with the
Applicant on 12 August 2020 about a medical clearance and to have received an email from
the Applicant at 6.08 pm on Sunday 16 August 2020 stating that he had been to a doctor a day
earlier, and the doctor would not give the Applicant a clearance. This is at odds with the
Applicant’s evidence that he was not told that he should obtain a medical clearance and that
he would have done so if this meant that he could have continued in employment with the
first Respondent.
[2021] FWC 1745
20
[82] On balance, I also prefer the evidence of Ms Tulemau on this point. While Ms
Tulemau did not produce the email she claimed to have received from the Applicant on 16
August 2020 in relation to his inability to obtain a medical clearance, the Applicant told Ms
Tulemau on 17 August 2020 that he intended to make a workers compensation claim and
proceeded to do so by 25 August 2020 when the Employment Separation Certificate was
provided by the first Respondent. Further, the information in the Form F8A filed by the
second Respondent is consistent with Ms Tulemau’s evidence and communication the
Applicant had with the co-ordinator of the second Respondent.
[83] Finally, the Applicant’s contract of employment, which he did not dispute that he had
signed, is consistent with the Applicant being employed as a casual employee on the basis that
he is assigned to clients of the first Respondent from time to time and that this relationship
continues, notwithstanding that an assignment may end.
Conclusion
[84] For these reasons I do not accept that the Applicant was dismissed within the meaning
in s. 386 of the FW Act. If it is necessary, I also do not consider that the Applicant was
dismissed within the ordinary meaning of the word – ordered or allowed to leave, sent away
or removed from employment. As a result, the Applicant is not entitled to make an
application under s. 365 of the Act and his application in C2020/6713 must be dismissed. An
Order23 to that effect will issue with this Decision.
DEPUTY PRESIDENT
Appearances:
Ms M Demarco of Demarco Law for the Applicant.
Mr H Lewis for the First Respondent.
Ms N Williams of Wotton and Kearney for the Second Respondent.
Hearing details:
18 December.
23 PR728327.
SEAL OF THE THE IR WORK COMMISSION
[2021] FWC 1745
21
2020.
Brisbane.
11 January.
2021.
By telephone.
Printed by authority of the Commonwealth Government Printer
PR728244
