1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Zack Allen
v
Grand Group Services Pty. Ltd.
(U2024/8163)
DEPUTY PRESIDENT ROBERTS SYDNEY, 12 NOVEMBER 2024
Application for an unfair dismissal remedy
[1] Mr. Zack Allen (Applicant) has brought an application for an unfair dismissal remedy
under Part 3-2 of the Fair Work Act 2009 (Cth) (Act) against a company called Grand Group
Services Pty Ltd (Respondent). The Respondent has objected to the application on the basis that
they have never employed Mr. Allen and could therefore not have dismissed him, unfairly or
otherwise.
[2] For the reasons that follow, I conclude that the Applicant was not at any relevant time
an employee of the Respondent and the Respondent did not dismiss the Applicant. Accordingly,
no remedy is available to Applicant against the Respondent.
Background
[3] The Applicant said he was engaged as a security guard by the Respondent from
approximately February 2023. He said he was contacted by his supervisor on 30 June 2024 and
terminated without notice or reasons. He said that the job on which he was working was not
completed and other employees continued to work after he was terminated. The Applicant
claims he was paid cash and did not receive his lawful entitlements, including penalty rates,
payment for public holidays and superannuation contributions. The Applicant sought
reinstatement as a remedy.
[4] The Respondent submitted that the Applicant was at all relevant times employed by a
company called Regent Maintenance Solutions Pty Ltd (Regent), which is an entity that the
Respondent has contracted with to provide security services on construction sites. The
Respondent provided evidence from two company representatives, a project security manager
and an administration officer, which was unchallenged by cross-examination. I set out the
findings that can be drawn from this evidence below.
Evidence and Findings
[2024] FWC 3112
DECISION
AUSTRALIA FairWork Commission
[2024] FWC 3112
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[5] The Applicant provided multiple ‘screenshots’, including from a ‘group chat’ titled
‘WTP Project’ which I understood to be relied on as evidence that the Applicant was employed
by the Respondent on that project. Site photographs and shift handover checklists with the
Respondent’s logo on them were also provided by the Applicant.
[6] The Respondent’s witnesses provided the following evidence, which I accept:
(i) The Respondent has a contractual relationship with Regent entered into in April
2022 under which the latter supplies security guards to construction sites on
which the Respondent has been engaged.
(ii) Security guards provided by Regent to the Respondent are interviewed by the
Respondent’s Project Security Manager before they attend site. The Project
Security Manager did not hire the Applicant.
(iii) The Respondent’s human resources team did not recruit the Applicant and does
not communicate with him.
(iv) Regent sends the Respondent invoices on a monthly basis for the services they
provide. Once the hours worked by Regent’s employees are confirmed by the
Respondent, Regent sends an invoice to the Respondent.
(v) The Respondent pays Regent for the services they provide. Regent pays the
security guards directly.
(vi) The Respondent has never paid the Applicant directly and does not have his
payment details.
(vii) Western Tunnelling Project (WTP) is a project on which the Respondent is
engaged. They have been engaged on the site by a company called Gamuda.
Approximately 50 security guards, including the Applicant, worked at this site.
(viii) Through its Project Security Manager, the Respondent participates in a ‘group
chat’ for the WTP. This chat allows the Respondent to communicate with the
companies it is subcontracted to and the guards on the site to confirm rosters and
to pass on information about what is happening on that site. The Operations
Manager of Regent is also in the group chat, as was the Applicant.
(ix) The Respondent requires guards employed by subcontractors to provide a
handover sheet at the beginning and end of shifts to ensure the site is in order.
(x) The Respondent had raised various issues related to the performance of the
Applicant with Regent and asked Regent that the Applicant be deployed to
another job.
(xi) Regent confirmed with the Respondent in writing in September 2024 that it had
employed the Applicant since February 2022 and that any disputes relating to
the Applicant’s previous employment should be addressed to them, not the
Respondent.
Legislation
[7] The Act protects certain employees from unfair dismissal. Section 382 provides,
relevantly, that a person is protected from unfair dismissal at a time if, at that time the person
is an employee who has completed a period of employment with his or her employer of at least
the minimum employment period. The terms ‘employee’ and ‘employer’ are defined for the
purpose of Part 3-2.1 With an exception that is not presently relevant, a ‘national system
[2024] FWC 3112
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employee’ is defined as an individual so far as he or she is employed, or usually employed, by
a national system employer.
[8] For a person to be protected from being unfairly dismissed by another party under the
Act, the person must have completed a certain period of employment, that is, a period of
employment as an employee of an employer in respect of whom the application is made2.
Section 394 provides that a person who has been ‘dismissed’ may apply to the Commission for
an order under Division 4 of Part 3-2 for a remedy. Section 385 provides that a person has been
unfairly dismissed if, amongst other things, the Commission is satisfied that the person has been
‘dismissed’. Section 386(1) provides that a person has been dismissed if their employment with
their employer has been terminated on the employer’s initiative or because they have resigned
but were forced to do so by their employer. Plainly, in the absence of a relationship of employer
and employee, the provisions of Part 3-2 of the Act are not engaged.
Conclusion
[9] It appears that the Applicant believed that he was engaged directly by the Respondent
and worked for them because they had a presence on the sites at which he was working and
because he received communication through a group chat that included the Respondent.
However, on the basis of the evidence before me I am not satisfied that the Applicant was at
any material time, an employee of the Respondent. The Applicant is not a person protected
from unfair dismissal by the Respondent because there was no relationship of employer and
employee between them. Nor was the Applicant dismissed by the Respondent.
[10] The application is misconceived and must be dismissed.
DEPUTY PRESIDENT
Appearances:
Mr Allen for the Applicant.
Mr Field, Solicitor for the Respondent.
Hearing details:
By Video using Microsoft Teams at 3:00pm AEDT on Tuesday, 29 October 2024.
Printed by authority of the Commonwealth Government Printer
THE WORKCO THE S 1 MMISSION
[2024] FWC 3112
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PR781150
1 Section 380 and ss 12, 13 and 14.
2 Other than in the case of transferring employees as referred to in s.384(2)(b).
