1
Fair Work Act 2009
s.394—Unfair dismissal
Cody Myers-Raab
v
CoreStaff VIC Pty Ltd T/A CoreStaff
(U2022/2017)
COMMISSIONER MIRABELLA MELBOURNE, 12 APRIL 2022
Application for an unfair dismissal remedy.
[1] This decision concerns an application for an unfair dismissal remedy under s.394 of the
Fair Work Act 2009 (the Act) by Mr Cody Myers-Raab (the application). CoreStaff VIC Pty
Ltd T/A CoreStaff (CoreStaff) has raised a jurisdictional objection to the application proceeding
within the meaning of s.386 of the Act. CoreStaff contends that Mr Myers-Raab has not been
dismissed.
Background
[2] CoreStaff is a labour hire company.
[3] Mr Myers-Raab was employed by CoreStaff on 19 May 2021 as a casual employee.
[4] Mr Myers-Raab does not dispute that he signed and sighted his employment contract
with CoreStaff. At the time of the alleged dismissal, Mr Myers-Raab was assigned to a host
employer, Walkinshaw Automotive Group Pty Ltd (Walkinshaw).
[5] Mr Warren Drew, Account Manager at CoreStaff, contacted Mr Myers-Raab by
telephone on 14 February 2022, approximately three hours before his shift with Walkinshaw
was due to begin. At the determinative conference conducted in the matter on 11 April 2022,
Mr Myers-Raab said that during this conversation he was told that he was no longer employed
through Walkinshaw.
[6] He confirmed that he was not told that his employment with CoreStaff had ceased.
[7] The following day, Mr Myers-Raab requested a separation certificate and filed the
application with the Commission on 16 February 2022.
[8] On 23 February 2022 Mr Ben Jensen, Human Resources Manager for CoreStaff, sent
the following email to Mr Myers-Raab:
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DECISION
AUSTRALIA FairWork Commission
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“Hi Cody
Further to our conversation this morning, here are the details of an alternative
assignment that is available for you immediately.
As discussed, unfortunately we are unable to insist that Walkinshaw continue with your
engagement and we’re unable to continue to pay you when an assignment ends.
Please let me know if this assignment is of interest. If so, you can start tomorrow.
Client: Barenbrug
Location: Dandenong South
Labouring, filling hoppers and handling bags of seeds (rye grass)
6:30-2:30pm - Monday to Thursday
6:30 - 12:30pm Friday’s
$27.15 per hour
Currently, you remain an active candidate and casual employee with CoreStaff, despite
the Walkinshaw assignment ending.
I understand you have requested a separation certificate and we can send you one
obviously, but will wait to hear from you as to whether you want to take the above
assignment or any other assignment we may have available.
Regards”
[9] Mr Myers-Raab responded as follows:
“Hi Ben
As stated I’m not very interested in employment under CoreStaff because of the way
everything has been handled, any further communication can be under email, I will be
continuing with my unfair dismissal application at this current time, thank you.”
[10] Mr Jensen replied:
“Hi Cody
Thanks for your reply. If you do change your mind about another assignment, please let
me know.
Regards
Ben Jensen”
[11] At the determinative conference, Mr Jensen confirmed that Mr Myers-Raab remains an
active candidate on CoreStaff’s database and that they are happy that he remains on the database
if he would like to be considered for a future assignment.
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Terms and conditions of employment
[12] Mr Myers-Raab’s employment contract with CoreStaff provides as follows under the
heading “On Hire terms”:
“You are employed as a casual on-hire employee of CoreStaff, which means that:
you are employed by CoreStaff to perform work for CoreStaff’s Clients on
Assignments;
the amount and type of work you receive whilst on Assignment will be determined by
the Client’s requirements for temporary labour services, and CoreStaff or the Client
may therefore terminate an Assignment at any time at their discretion;
your work on an Assignment is conditional upon you complying with all reasonable
and lawful directions that CoreStaff or the Client gives you and you meeting all
performance, behavioural, safety and conduct requirements set for you by CoreStaff
or the Client;
you are not entitled to ongoing work on any particular Assignment or upon the
cessation of that Assignment directly with CoreStaff;
the terms and conditions of any Assignment may differ from Assignment to
Assignment and may be altered during the course of the Assignment;
the end of an Assignment does not mean your casual employment has been terminated
however you continue to have no guarantee of ongoing work and each Assignment
continues to constitute a separate period of employment;
at the cessation of an Assignment you are not entitled to any severance or termination
payment; and
you are at all times during an Assignment an employee of CoreStaff and are subject
to CoreStaff’s control and direction and that of our clients.”
Jurisdictional objection
[13] Section 386 of the Act provides:
“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
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(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.”
[14] CoreStaff draws a distinction between the end of an assignment and the termination of
employment with CoreStaff. The employment contract states this very clearly:
“• you are not entitled to ongoing work on any particular Assignment or upon the
cessation of that Assignment directly with CoreStaff”
[15] Mr Myers-Raab confirmed that he was not told on 14 February 2022 or at any other time
that his employment with CoreStaff had been terminated. Mr Myers-Raab says he believed that
his employment was terminated because his assignment with Walkinshaw had ceased. He did
not claim ignorance regarding his employment contract, and the terms of that contract are
written in plain English and are unambiguous.
[16] Mr Myers-Raab contends that he was dismissed. He says that when he was told that he
would no longer be employed through Walkinshaw, he believed his employment had been
terminated.
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[17] Mr Myers-Raab claims that he was told his time with Walkinshaw had ceased because,
amongst other things, he had been accused incorrectly in his view of logging in late for work,
taking 41 days off work and given multiple warnings. He says that he was targeted because he
had complained about harassment and assault from a team leader and manager. CoreStaff
contends that Mr Myers-Raab was not dismissed and disputes Mr Myers-Raab’s factual
contentions regarding lateness in logging into work, that the days absent from work as provided
by CoreStaff are incorrect and that he was harassed or assaulted.
[18] The correspondence between the parties on 23 February 2022 clarifies any
misunderstanding that Mr Myers-Raab had regarding his employment status with CoreStaff.
He was offered an alternative assignment and when he rejected the new assignment, he was
informed that if he changes his mind to communicate same to CoreStaff.
[19] Mr Myers-Raab did not provide any substantive submissions regarding the jurisdictional
objection. Subsequent to CoreStaff filing the Form F3 which outlined the jurisdictional
objection, Mr Myers-Raab submitted print outs of timesheets, text messages (including his
request for a separation certificate), time and date stamped notes he had written on his mobile
telephone describing incidents in the workplace over January and February 2022 and a statutory
declaration from Mr Sean Matthew Collins relating to the dispute of when shifts were to
commence. This additional material appears to be relevant to the issue of whether the alleged
dismissal was unfair, not whether there was a dismissal under the Act.
[20] CoreStaff contends that it did not dismiss Mr Myers-Raab. They submit that they offered
him an alternative assignment and that he remains “an active candidate” in their system. They
deny initiating any termination and say that Mr Drew, a very experienced Labour Hire Account
Manager, is aware of the company’s policies and procedures and that “[u]nder no circumstances
would CoreStaff initiate the termination of employment without a written termination letter
being provided to the employee.”1
[21] They submit that their experience with staff includes many who conclude working at
one assignment and go onto another employer but that they cannot insist that Walkinshaw
provides work for a specific candidate, in this instance Mr Myers-Raab.2
[22] Mr Myers-Raab had a contract with CoreStaff and was employed by them. He
acknowledged that at no time was he informed that his employment with CoreStaff had ceased.
The termination of Mr Myers-Raab’s assignment with Walkinshaw did not terminate his
employment with CoreStaff.3
[23] CoreStaff did not deny Mr Myers-Raab’s employment. He was offered an alternative
assignment but declined it because he was “not very interested in employment under CoreStaff
because of the way everything has been handled”.4 In asking for a separation certificate, Mr
Myers-Raab was making a unilateral subjective decision to treat his employment as being at an
end.
[24] Mr Myers-Raab’s application for an unfair dismissal remedy does not meet the
jurisdictional requirements of the Act. That is, I find that his employment was not terminated
as per s.386 of the Act.
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[25] The application is dismissed. An order to this effect is issued with the decision.
COMMISSIONER
Appearances:
The Applicant on his own behalf
Mr B. Jensen for the Respondent
Hearing details:
2022
Melbourne (video using Microsoft Teams)
11 April
Final written submissions:
5 April 2022 (Applicant)
29 March 2022, 8 April 2022 (Respondent)
Printed by authority of the Commonwealth Government Printer
PR740269
1 Exhibit R2.
2 Exhibit R3.
3 Arcadia v Accenture Australia [2008] AIRC 108, [6]-[7].
4 Exhibit R2.
WORK COMMISSION FAIR THE THE SEA
