1
Fair Work
Act 2009
s.394—Unfair dismissal
Pacifique Gakindi
v
Oncall Language Services Pty Ltd
(U2022/12110)
DEPUTY PRESIDENT LAKE BRISBANE, 22 FEBRUARY 2023
Application for an unfair dismissal remedy – jurisdictional objection – no dismissal -
objection upheld – application dismissed.
[1] This decision concerns an application for an unfair dismissal remedy under s.394 of the
Fair Work Act 2009 (the Act) by Mr Pacifique Gakindi (the Applicant). Oncall Pty Ltd (the
Respondent) has raised a jurisdictional objection to the Applicant’s application proceeding on
the basis that the Applicant has not been dismissed within the meaning of s.386 of the Act.
Further they allege the Application was made out of time.
[2] The jurisdictional objection arises because – it is claimed by the Respondent – that the
Applicant has not been dismissed by the Respondent. Following this claim, the Respondent
seeks I exercise my discretion under s.587(1)(c) of the Act to dismiss the application, on the
basis that there is no reasonable prospect of success.
[3] The Applicant represented himself and the Respondent requested that they be
represented by Mr Andrew Maher of CIE legal. The Applicant did not oppose representation
and I considered that the determination on whether a casual employee has been dismissed or
merely has experienced a decrease in work involves some complexity and that Mr Maher would
assist the Fair Work Commission (Commission) by ensuring the matter is dealt with efficiently
during the hearing. I granted permission for Mr Maher to represent the Respondent.
BACKGROUND
[4] The Applicant began his employment in 2004 The Applicant alleges that he was
dismissed on either 24 November 2022 or 14 December 2022. The Respondent alleges that the
Applicant was not terminated. The application was lodged with the Commission on 21
December 2022.
[5] The Applicant was employed as a casual employee undertaking translation work for
clients of the Respondent. He was proficient in a number of languages and would accept work
through the Respondent’s portal. The work was not systematic or regular and ebbed and flowed
with the demands for his particular language set and his availability.
[2023] FWC 436
DECISION
AUSTRALIA FairWork Commission
[2023] FWC 436
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[6] The Applicant was assigned to a client of the Respondent, Services Australia (Client)
at their Grasstree Inala services centre in July 2022. The work was done as per a contract for
services by Oncall to Services Australia. The Applicant worked 7 hours and 30 minutes a day
and did so for a number of months.
[7] The Applicant performed work at Inala services centre until the Client required the
Applicant to discontinue his temporary assignment on 24 November 2022. The reason given by
the Client was the lack of proficiency in Kiswahili.
[8] The Respondent informed the Applicant via phone that he would no longer be required
to perform translation services for the Client and that he was still employed by the Respondent
as a casual and could obtain work through the usual channel. A letter confirming this was sent
on the 14 December 2022.
[9] Following this date, the Applicant has continued his casual employment with the
Respondent and has accepted interpreting work in Kirundi and Kinyarwanda, the other
languages he is proficient in and accredited. There has not been the same volume of work as
the Applicant experienced when he accepted the work from the Client.
The Applicant’s Submissions and evidence
[10] The Applicant submits that he worked as a casual for the Respondent for the past 15
years. He notes that he is accredited for translation services in Kirundi and Kinyarwanda and is
also proficient in Kiswahili and French. Mr Gakindi states that his recent assignment was with
the Client from 1 July 2022 to 24 November 2022. Interpreting work for the Client between
these dates was regular with work every Monday to Friday between 8:30 a.m. to 4:30 p.m.
[11] Mr Gakindi submits that he provided services in a third language Kiswahili which he is
not accredited for however he had let the Client know of his level of proficiency. He claims that
there were no warnings regarding his performance whilst with the Client.
[12] The Applicant asserts that on the 24 November 2022 his work assignments with the
Client were removed from his device and he initially thought that this was a technical issue as
no one had said anything to him.
[13] Mr Gakindi was contacted by Kate Hulusi, Interpreter Relations Manager, on 24 or 25
November 2022 and was told that the Client had asked to have him removed from the job
because his Swahili was not up to standard. The Applicant asserts that management had only
told him that he was not to go to the Client, and he thought that the situation was only temporary
and that he would return to the Client at a later date. He claims that he did not understand that
he would no longer be working on this assignment.
[14] Following the conversation with Kate Hulusi, Mr Gakindi became very stressed,
anxious, and upset. He was confused about the status of his employment. He contacted his
family doctor for mental health issues and received a Mental Health care plan.
[2023] FWC 436
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[15] The Applicant sent an email to Kate Hulusi on the 14 December 2022 asking to clarify
the situation because he was still confused about if he was dismissed or not. He received a
response from the Respondent confirming that he would not be returning to work for the Client.
[16] The Applicant believes that he was unfairly dismissed as he was not aware that there
were issues regarding his performance with the Client and he was not able to respond. He
contends that he has suffered financially as there has not been the same volume of work
provided by the Respondent since his alleged dismissal.
[17] The Applicant claims that he was notified of his dismissal on the 14 December 2022,
and he lodged his application on the 21 December 2022 and thus asserts that the Application
was submitted on time.
Respondent’s submissions and evidence
[18] The Respondent submits that the Applicant was not dismissed by the Respondent as he
is still employed by the Respondent as a casual interpreter.
[19] The Respondent provides interpreting and translating services to companies and
government organisations. The Respondent employs approximately four thousand interpreters
across Australia who undertake ad-hoc interpreting services in government, legal, and
healthcare settings. The availability of the work is solely dependent on client needs and is
inconsistent, therefore all interpreters are employed as casual employees.
[20] The Applicant began his casual employment with the Respondent in 2004 as an
interpreter in Queensland. He completed ad-hoc interpreting work for the Respondent’s clients,
which was made available to him via the Respondent’s portal. The Applicant can accept or
reject any interpreting work that is offered to him.
[21] Services Australia is a key client of the Respondent. In accordance with the written
agreement between the Client and the Respondent (the Services Australia Contract), the
Respondent supplies casual interpreters to complete face to face interpreting services at the
Client’s service centres. The casual interpreters typically work at a service centre for
approximately 3 months at a time (Temporary Assignments).
[22] Under the Services Australia Contract, the Client can alter any interpreting assignment
(which includes reducing its length or cancelling it entirely) with only 2 business days’ notice.
The Respondent must comply with such requests within two business days. While undertaking
the Temporary Assignments, there is increased opportunity for casual interpreters to work more
hours, however they are casual interpreters (who are paid a casual loading) and the parameters
of the Temporary Assignment can therefore change at any time.
[23] In July 2022, the Applicant began a Temporary Assignment at the Inala Services
Australia service centre (Inala) to interpret Kiswahili, Kirundi, and Kinyarwanda. The
Applicant continued to work at Inala until the Client required the Respondent to end his
Temporary Assignment on 24 November 2022, due to the Applicant’s lack of proficiency in
interpreting Kiswahili which was negatively impacting the consumers of the interpreting
services.
[2023] FWC 436
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[24] The Respondent advised the Applicant of the direction and confirmed he would still
receive interpreting opportunities through the Respondent’s portal but that the Respondent was
unable to place the Applicant into another Temporary Assignment at that time, as other
vacancies required Kiswahili proficiency. On 24 November 2022, the Applicant ceased the
Temporary Assignment. Upon request from the Applicant, the Respondent sent a letter on 14
December 2022 confirming the end of the Applicant’s Temporary Assignment. It also
confirmed the Respondent would maintain the Applicant’s casual employment and he would
continue to receive available work through the Respondent’s portal.
[25] Since 24 November 2022, the Applicant has continued his casual employment with the
Respondent and has accepted and completed other available interpreting work (including other
interpreting work for the Client for Kirundi and Kinyarwanda languages) for which he has the
proficiency. The Applicant’s current volume of work has decreased since the latter part of 2022;
however, this is the result of the ebb and flow of casual employment, rather than a dismissal
under s.386(1) of the Act. Further, the Respondent was under no obligation to continue to offer
the Applicant work for a Temporary Assignment when the Client did not require his services.
[26] The Respondent asserted that previous decisions of the Commission confirm that a
reduction in hours does not lead to a casual employee being ‘dismissed’ under s.386(1) of the
Act.1 The case of Michelle Stowers v Drake Australia Pty Ltd2
saw a casual nurse (who worked
between 4.5 – 10 hours a fortnight) have no shifts offered to her after a client lodged a complaint
against her to Drake Australia. The Commission found that Drake Australia had no obligation
to continue to offer her employment with a disgruntled client and, also, that her casual
employment continued on the basis that Drake Australia would continue to offer her work with
other clients.
The Applicant is out of time
[27] The Respondent contends that if the Commission determines that the Applicant was
dismissed (which the Respondent does not concede), then the Respondent submits that the
Applicant’s termination was affected on 24 November 2022 and his lodgement date of 21
December 2022 placed him outside of the 21-day time limit.
[28] The Respondent submits that the none of the exceptions to the 21-day time limit apply
as set out in s.394(3) of the Act apply.
Evidence of Gayle Antony
[29] Ms Antony is the General manager for People and Culture at Oncall and is responsible
for all aspects of the Human Resources function. She confirmed that Mr Gakindi has been
employed as a casual interpreter by the Respondent since 23 June 2004. As stated earlier, as
casual interpreter of the Respondent he would receive interpreting jobs through the
Respondent’s portal, which employees are able to accept or decline.
[30] Ms Antony confirmed that the Respondent has a contract with the Client to provide
casual interpreters physically at their service centres for a rostered period and under the
[2023] FWC 436
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agreement between the Respondent and the Client, the Client has the right to unilaterally cease
a casual interpreter’s assignment at any time.
[31] The assignments with the Client are located at the various service centres that they
operate and in this matter the service centre was located at Inala. The assignments typically are
of 3 months duration. Following which the casual interpreters are either offered a further
Temporary Assignment if the work is available or revert to undertaking ad hoc interpreting
work for other clients via the portal. Ms Antony stated it is common for interpreters to work
through a number of different companies for translation services and there is no requirement
the interpreters act exclusively for the Respondent.
[32] Ms Antony states that the Client had a vacant assignment at Inala which the Respondent
had not been able to fill, the requirements for the assignment were Kirundi, Kinyarwanda, and
Kiswahili.
[33] In and around early June 2022, the Respondent sent an expression of interest survey to
all current casual interpreters on its system, which Mr Gakindi responded to, and he was
subsequently placed into the vacant assignment. He commenced in July 2022, and provided
interpreting services for Kiswahili, Kirundi, and Kinyarwanda at Inala.
[34] On 22 November 2022, Ms Antony first became aware of the Client’s concerns through
Mr Ngo, the General Manager, and Ms Antony stated that she advised Ms Hulusi, Operations
Manager, to contact the Applicant and advise him that the Client no longer required his
interpreting services as he could not interpret Kiswahili to a satisfactory level (which was the
key language the Client required interpreting for in the region) and that he would have access
to the Respondent’s portal as usual for interpreting work, as it became available.
[35] The Applicant has accepted work through the Respondent’s portal subsequently to his
finishing the assignment with the Client and the Respondent still considers the Applicant an
employee.
Evidence of Kate Hulusi
[36] Ms Hulusi is a Relationship Manager with the Respondent, and she asserts that she
attempted to call the Applicant on 24 November 2022 following her discussion with Ms Antony
regarding Services Australia no longer wanting the Applicant to provide services to them. Ms
Hulusi attests to the fact that the Applicant returned her call and that he informed her that a
supervisor from the Inala site had told him that he was no longer required at the site. Further
the Applicant went on to say it was because his Swahili language skills were not sufficient. The
Applicant commented that he was not surprised as he ‘did not sign up for this language.’ He
asked if he could remain on site and continue to interpret other languages.
[37] Ms Hulusi informed him that the Client had asked for his removal and that the
Respondent had to comply with this request. On 14 December 2022, Ms Hulusi received an
email from the Applicant requesting further information regarding the ending of his assignment
with the Client. Ms Hulusi replied via email and reinforced that he was still employed with the
Respondent to receive assignments.
[2023] FWC 436
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[38] Ms Hulusi contends that the Applicant is still availing himself of work opportunities
through the Respondent’s portal.
Evidence of Tabita Barua
[39] Ms Barua is a Customer Service coordinator with the Respondent. Ms Barua confirmed
that she had a conversation with the Applicant regarding his proficiency in Kiswahili and that
the Applicant had acknowledged that he only spoke basic Kiswahili but to her knowledge there
had been issues raised by Services Australia and so she did not pursue that matter.
[40] Following the events of the 24 November, Ms Barua was copied in on an email
regarding the Applicant’s ending of his assignment and that she was requested to follow up
with a replacement which she did undertake.
Evidence of Chris Ngo
[41] Mr Ngo is the General Manager for the Respondent and is responsible for the Operations
of the Respondent’s business which includes management of interpreters, call centre
management, and allocation of interpreters and key liaisons with the Client.
[42] Mr Ngo states that on 22 November 2022, he received an email from Cherina Rajeevan
(Ms Rajeevan) from Services Australia requesting an investigation into the Applicant’s
competency in interpreting Kiswahili as the Applicant had informed the Inala service centre
that he did not speak Swahili.
[43] Mr Ngo investigated the query by the Client and became aware that the Applicant had
only basic Kiswahili and proposed a number of alternative solutions to the Client. The Client
determined that they no longer wished the Applicant to provide interpreting services and for
the Respondent to provide an alternative interpreter who had the requisite language skills in
Kiswahili.
[44] The Respondent did source an alternative interpreter and continues to employ the
Applicant and offer him work.
JURISDICTIONAL OBJECTION
[45] Section 386 of the Act relevantly provides:
Section 1.01 “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
http://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#dismissed
http://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#employer
http://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#employer
[2023] FWC 436
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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.“
[46] The Respondent draws a distinction between the termination of assignment to Services
Australia site and termination of the Applicant’s employment. It is clear on a reading of s.386
that a mere termination of assignment would not fall within the ambit of s.386.
[47] Given the correspondence of the Respondent on 15 December 2022, there is an ongoing
relationship between the parties. There was no dismissal by the Respondent, there is ongoing
offerings of work from the Respondent consistent with his employment prior to the assignment
with Services Australia.
[48] The Respondent acts as the employer and provides assignments based upon work that
the Respondent secures. The clients of the Respondent have the discretion to utilise the services
they request in the manner that they require. In this matter the interpreting services of a specific
language was a requirement and the Applicant, although able to work at a basic level with
Kiswahili, was not at the level that the client needed. In the end the Client determined they
required an interpreter with the appropriate level of language skill and the Respondent was
contractually bound to provide that service through an appropriately skilled interpreter. The
arrangement is similar to labour hire where In Arcadia v Accenture Australia, Watson VP stated:
“An employment contract is formed by the offer and acceptance of a contract of
service in which all of the essential ingredients of a valid contract are present.
The contract must include consideration, the parties must have a continuing and
mutual obligation to perform their respective sides of the bargain and there
must be intention to create legal relations.
In a typical labour hire situation, a tripartite arrangement is made whereby an agency
enters into an agreement with a worker to hire out the services of the worker to a host.
In general, the absence of any contract between the worker and the host will lead to
a finding that the worker is not an employee of the host. Although the concept of joint
employment has some recognition in US Labour Law, it has not been adopted by any
Australian Court.”3
[references removed; emphasis added]
[49] The above highlights the separation between the agency who employs the worker and
the company who utilises the services of the worker. The tripartite arrangement present in this
case clarifies that the Applicant was not an employee of Services Australia and therefore was
not terminated upon cessation of his assignment. The Applicant continues to have an ongoing
relationship with the Respondent, as he currently accepts work from their portal.
http://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#conduct
http://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#conduct
http://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#employer
[2023] FWC 436
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[50] I understand that the Applicant had hoped that the Assignment with the Client would be
an ongoing one as it was on a different rate of pay and required him to work around 38 hours a
week for a period of time. The work of an Interpreter as a casual employee relies upon the
demand for the services in a particular language or group of languages, it is by its nature a series
of casual engagements that constantly vary according to demand for the languages.
Unfortunately, in this instance his particular language skills did not match the client
requirements and he was no longer offered an assignment, this may change if his languages
increase in demand and the Respondent has indicated that they continue to regard him as an
employee.
DISMISSING THE APPLICATION
[51] Section 587 of the Act provides:
Section 1.02 “587 Dismissing applications
(2) [When FWC may dismiss application]
Without limiting when the FWC may dismiss an application, the FWC may
dismiss an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
Note: For another power of the FWC to dismiss an application for a remedy for unfair
dismissal made under Division 5 of Part 3-2, see section 399A.
[52] Given that the Applicant is still an employee of the Respondent, I find that the
application has no reasonable prospect of success.
Out of time
[53] I have not determined this objection as I am dismissing the application under
s.587(2)(c).
CONCLUSION
[54] The Respondent has not dismissed the Applicant, he was removed from an assignment
due to a lack of a particular language skill and continues to be an employee of the Respondent.
[2023] FWC 436
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[55] In accordance with s.587 of the Act, the application for an unfair dismissal remedy is
dismissed. I Order accordingly.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR750981
1 City of Sydney RSL & Community Club Limited v Balgowan, Roxana [2018] FWCFB 5; Hogan, Karin Marta v
TB Hotels Pty Ltd T/A The Jubilee Hotel [2017] FWC 4662; Smith, Kellie v Australian Leisure & Hospitality
Group Pty Limited T/A Jimboomba Country Tavern [2020] FWC 2347
2 [2021] FWC 6112 3
3 Arcadia v Accenture Australia [2008] AIRC 108, [6]-[7].
THE FAIR WORK CO LA MISSION SEAL THE
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc4662.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwc2347.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwc6112.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2008airc108.htm
