1
Fair Work Act 2009
s.365—General protections
Sean Carpenter
v
Global Management NSW Pty Ltd
(C2024/6799)
COMMISSIONER SLOAN SYDNEY, 24 DECEMBER 2024
Application to deal with contraventions involving dismissal dismissal – jurisdictional
objection – whether the applicant was dismissed from his employment – employee was not
dismissed –application dismissed
[1] On 23 September 2024, Sean Carpenter lodged with the Fair Work Commission an
application for a general protections remedy.1 He claimed that he had been dismissed by Global
Management NSW Pty Ltd for raising questions as to his rates of pay.
[2] Global objected to the application. It denied that it had dismissed Mr Carpenter.
It asserted that its relationship with Mr Carpenter was ongoing.
[3] I listed the matter for hearing of the jurisdictional objection and made directions that the
parties file and serve evidence and submissions in anticipation of that hearing. The Commission
sent the directions to the parties by email to the addresses that they had provided.
[4] Mr Carpenter filed no material in response to the directions.
[5] The matter came before me for hearing on 6 December 2024. Mr Carpenter did not
appear. The Commission made several unsuccessful attempts to contact him by telephone and
email. I determined to proceed with the hearing in his absence.
[6] Having heard from Global, I found that the company had not dismissed Mr Carpenter.
I ordered that the proceedings be dismissed. I stated that the reasons for my decision would
follow.
[7] These are those reasons.
The facts of the matter
[8] I have derived the following facts from the material filed by Global. As Mr Carpenter
did not engage with the proceedings, I have taken the evidence to be uncontroverted.
[2024] FWC 3592
DECISION
AUSTRALIA FairWork Commission
[2024] FWC 3592
2
[9] Global runs a labour hire business. It employed Mr Carpenter under a contract of
employment that he signed on 25 July 2024. That contract provided that Global employed
Mr Carpenter on a casual basis and would place him on “assignment” with clients of the
business. Significantly for present purposes, the contract also provided that:
a) Global could change or terminate an assignment without reason;
b) Mr Carpenter had no right to ongoing employment, or to continued engagement on a
particular assignment; and
c) the termination of an assignment did not constitute the termination of Mr Carpenter’s
employment with Global.
[10] Global assigned Mr Carpenter to work in a client’s warehouse. The assignment
commenced on or about 29 July 2024.
[11] On 14 September 2024 the client sent an email to Global. The email requested that
Global inform Mr Carpenter that he would no longer be required. The email stated that he had
been “inconsistent with performance and unreliable”.
[12] On receipt of the email, an employee of Global called Mr Carpenter. She informed him
that he was no longer required by the client. She said that she would get “the office” to contact
him to see if another role might be available for him.
[13] Global has been unable to offer Mr Carpenter any further work since 14 September 2024
as it has no suitable opportunities for placement. He remains on Global’s system as “active”.
Carpenter was not dismissed
[14] For Mr Carpenter to be entitled to make the general protections application he has
brought, he must have been dismissed.2 The Commission cannot deal with the application
otherwise.3 As Global contends that there was no dismissal, it gives rise to a dispute as to
whether Mr Carpenter is entitled to make the application. I must resolve that dispute to
determine whether the Commission can exercise any of its powers to deal with the application.4
[15] A dismissal may occur in one of two ways. First, where a person’s employment with
their employer is terminated on the employer’s initiative.5 A termination will be “on the
employer’s initiative” if it is brought about by an employer without the employee’s agreement.
The question is whether an action on the part of the employer was the principal contributing
factor which resulted, directly or consequentially, in the termination of the employment.6
[16] Second, where the person has resigned from their employment, but was forced to do so
because of conduct, or a course of conduct, engaged in by their employer.7 There was no
suggestion that Mr Carpenter resigned.
[17] In this case, the question was whether the Global’s termination of Mr Carpenter’s
assignment with the client also terminated the employment. I was satisfied that it did not.
[18] In some cases, the employment relationship between a labour hire company and an
employee may continue during periods where the employee is not placed at a client company.
[2024] FWC 3592
3
This will depend on the contractual arrangements between the parties and the factual matrix in
which they operate.8
[19] In the present case, the contract between Mr Carpenter and Global expressly
contemplated the continuation of the employment relationship despite the termination of an
assignment. The ongoing nature of the relationship was evidenced by Mr Carpenter being told
on 14 September 2024 that Global would explore other opportunities for him and him remaining
“active” on Global’s system.9 The fact that Global has been unable to secure other work for
Mr Carpenter is reflective both of the nature of a labour hire business and his casual status.
It does not itself lead to the conclusion that the employment relationship has come to an end.
Conclusion
[20] For these reasons, I was satisfied at the conclusion of the hearing that Global had not
dismissed Mr Carpenter. I made a finding to that effect.
[21] The consequence of that finding was that Mr Carpenter was not entitled to bring these
proceedings. The only appropriate order for me to make was that the proceedings be dismissed.
I made that order.
COMMISSIONER
Appearances:
Hayley Furness, for the Respondent
Hearing details:
6 December
Sydney (by video)
2024
Printed by authority of the Commonwealth Government Printer
PR782825
1 The application was brought under s 365 of the Fair Work Act 2009 (“Act”). Unless otherwise stated, all references in this
decision to legislative provisions are to provisions of the Act
2 Section 365
3 Coles Supply Chain Pty Ltd v Milford (2020) 300 IR 146; [2020] FCAFC 152 at [51]
WORK COMMISSION THE SEALOF THE F
[2024] FWC 3592
4
4 Coles Supply Chain Pty Ltd v Milford (2020) 300 IR 146; [2020] FCAFC 152 at [67]. See also Lipa Pharmaceuticals Ltd v
Mariam Jarouche (2023) 324 IR 375; [2023] FWCFB 101 at [4].
5 Section 386(1)(a)
6Saeid Khayam v Navitas English Pty Ltd [2017] FWCFB 5162 at [75], citing Mohazab v Dick Smith Electronics Pty Ltd (No
2) (1995) 62 IR 200
7 Section 386(1)(b). This provision is intended to reflect the common law concept of constructive dismissal: Explanatory
Memorandum for the Fair Work Bill at par 1530; City of Sydney RSL & Community Club Limited v Roxana Balgowan
[2018] FWCFB 5 at [9] and [13]
8 Kim Star v WorkPac Pty Ltd T/A WorkPac Group [2018] FWC 4991 at [69]
9 See Wendy Bradford v Toll Personnel Pty Ltd T/A Toll Ipec [2013] FWC 1062 at [57]
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb101.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb5162.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb5.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwc4991.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2013fwc1062.htm
