DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mrs Ankita Singh
v
Labourforce Impex Personnel Pty Ltd
(U2016/13138)

Application for an unfair dismissal remedy; whether applicant dismissed for purposes of s.386; labour on-hire employee; application dismissed.

[1] On 30 October 2016, Mrs Ankita Singh (Applicant) applied under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The Applicant registered with Labourforce Impex Personnel Pty Ltd (Respondent) on 4 February 2016. 1 The Respondent is a labour hire company which provides labour hire employees to businesses which include Placard Pty Ltd (Placard). The Applicant was a casual employee who had been in receipt of casual work since 22 March 2016.2 The Applicant alleges that she was dismissed by the Respondent on 15 October 2016.3

[2] The Respondent says that the Applicant’s application should be dismissed on four jurisdictional grounds. 4 First, it submits that the Applicant was not dismissed as subsequent emails and correspondence between the parties point strongly to attempts made by the Respondent to further the employment relationship.5 Secondly, it says that if the Commission determines that the Applicant’s employment was terminated, that it was not at the initiative of the employer for the purposes of s.386(1)(a) of the Act. Thirdly, it says that the employment relationship came to an end by reason of a specified task having been completed for the purposes of s.386(2)(a) of the Act. Fourthly, it submits that should the Commission find that the Applicant’s employment was terminated, then the application was lodged outside of the time prescribed to lodge an application.

[3] I have concluded that the Applicant was not dismissed within the meaning of s.386(1) of the Act and accordingly, is not able to pursue this application. I have therefore found it unnecessary to consider the alternative jurisdictional grounds pressed by the Respondent. The reasons for that conclusion are discussed in the latter part of my decision.

Background

[4] The Applicant entered into an agreement titled an “Agreement with Registrant For On-Hire Employment” with the Respondent on 4 February 2016 (Agreement). 6 In that Agreement the Applicant acknowledged that she would be placed on a register for assignment to work with the Respondent’s clients. She also acknowledged her obligations with respect to any such work and her relationship with the Respondent.7

[5] Clause 3.7 of the Agreement provides as follows:

“Neither your registration with us, nor anything contained in this agreement, creates any relationship of employment. However, each time that you accept an assignment, you will be entering into a new contract of employment with us. The terms of those contracts will include the terms that apply to assignments set out in clauses 2.2, 2.3, 3.8, 4 and 7 of this agreement together with such other terms as may be agreed at that time”. 8

[6] On 22 March 2016, the Applicant accepted her first assignment to undertake duties at Placard. 9 The Applicant was paid by the Respondent as a casual employee and generally worked regular and systematic hours with Placard.10 Between 22 March 2016 and the week ending 2 October 2016 the Applicant worked solely for Placard.11

[7] On 20 September 2016, the Applicant injured her wrist, but continued to work until she sought medical attention from a doctor who advised her that she should cease her duties for a short period of time. 12 On 4 October 2016, the Applicant sent a text message to Ms Castelli, Branch Manager of the Respondent, advising her that her injury was troubling her and that she would require the following day (5 October 2016) off to seek medical attention.13 The Applicant says that she was on “WorkCover” between 5 October 2016 and 8 October 2016 as a result of the injury.14 It is not in dispute that the Applicant provided Ms Castelli with a certificate of capacity on 7 October 2016.

[8] On 7 October 2016, the Applicant sent a text message to “Sean”, her team leader at Placard saying the following:

“Please let me know from when I can start back. Thanks Ankita ” 15

[9] He replied to the text message as follows:

“Hi Ankita, we have staffed without you for next week. Just keep an eye out for txt (sic) from agency regarding work” 16

[10] The Applicant’s husband, Mr Vivek Rajput, sent an email on 11 October 2016 to Ms Castelli clarifying the Applicant’s injury status and requesting answers to some questions that he raised in respect of his wife’s injury and the reason why his wife was not receiving shifts. 17 Ms Castelli responded to Mr Rajput’s email as follows:

“…Ankita not being rostered on this week is no way due to her injury but by needs of the client, I unfortunately do not have control over the roster and am waiting response from the client as to when she is required.

…” 18

[11] On 14 October 2016 the Applicant sent an email to Ms Castelli saying:

“Hi Jo,

I was wondering, can you please give the most reasonable reason for which my shifts are taken off from Placard, considering the timing that is coinciding exactly when I got hurt at work-place”

Thanks

Ankita” 19

[12] On 15 October 2016, Ms Castelli sent an email to the Applicant forwarding an email that she had received from Mr James McLeary, the Bureau Production Manager at Placard which stated:

“Hi Ankita

This is what I got from James

Hi Jo,

We have rescheduled work from hand line to machines so we have been cutting back staff in the
handline area nothing to do with her injury.

Thanks

James McLeary
Bureau Production Manager

Placard Pty Ltd” 20

[13] The Applicant lodged her application for an unfair dismissal remedy on 30 October 2016. The Applicant indicated in her application that the date of the dismissal was 7 October 2016, 21 however, during the proceeding the Applicant’s date of dismissal changed to 15 October 2016.22 With this in mind, the jurisdictional objection raised by the Respondent in respect of the Application being lodged outside of the time prescribed would fall away.

[14] In mid-November 2016, the Applicant left to India with her family. 23

[15] On 28 November 2016, the Applicant received an email from Ms Castelli stating that “Placard has a position starting ASAP in manufacturing”. 24 This was also reiterated in a text message from Ms Castelli to the Applicant. The text message requested that the Applicant call Ms Castelli as she had a “…spot back at Placard as of tomorrow in manufacturing”.25 A further text message was sent to the Applicant requesting a response and advising the Applicant that “she will have to fill it if I don’t hear back”.26

[16] The Applicant replied to Ms Castelli on 30 November 2016 indicating that she had moved to India with her family 27 but that she would return as soon as possible if she could secure 4-5 shifts a week at Placard.28 The Applicant does not inform the Respondent that she has lodged an application with the Commission, but instead indicates that she is hopeful to secure more shifts with Placard.

[17] On 7 December 2016, the Applicant received another text message from Ms Castelli asking whether she was available to undertake some work in Keysborough. 29 The Applicant replied to Ms Castelli saying that Keysborough is too far for her to travel and that she would prefer to receive work in areas which are accessible to public transport as that is the Applicant’s mode of transport.30

[18] The Applicant returned to Australia on 19 December 2016. 31

Legislative Framework

[19] An unfair dismissal is set out relevantly in s.385 of the Act as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and
(b) …
(c) …
(d) …”

[20] The word dismissed is defined in s.386 of the Act. It provides as follows:

“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”.

Consideration

[21] The Applicant’s evidence about the date of dismissal changed through the course of the proceeding. The Applicant says that she had been receiving regular and systematic shifts from Placard for a number of months and argues that the assignment with Placard ended because of her injury and in essence constituted her dismissal. 32 The Applicant clarifies her position and says that it was on 15 October 2016 that she got “clear notification that they are cutting down and that there are no shifts in Placard”.33 On any fair reading of the 12 October 2016 and 15 October 2016 emails there is no reason why the Applicant should have concluded that her employment had been terminated by the Respondent.34 The 12 October 2016 email from Ms Castelli to Mr Rajput explains that the Respondent is waiting to hear back from Placard and that the lack of shifts is not because of the Applicant’s injury.35 The 15 October 2016 email also indicates that the cut back in shifts had nothing to do with the Applicant’s injury and that instead Placard had rescheduled work to machines and as a result staff shifts had been cut back.36 Both emails are consistent with each other and it can only be said that the Respondent was guided by its client’s business needs and requests, in terms of staffing numbers and requirements.

[22] It is difficult to comprehend why the Applicant believes that she had been dismissed by the Respondent when it is evident from the exchanges reproduced above that there were subsequent emails between the Applicant and Ms Castelli about work. These exchanges point strongly to attempts made by the Respondent to further the employment relationship and offer the Applicant additional work. The Applicant accepts that had work been offered to her in an appropriate location, she would have accepted the job. 37 That the Applicant did not pursue those work opportunities is by no means fault that can be attributed to the Respondent. The Applicant maintains that she waited 30-40 days for work before she decided to go to India.38 While the Applicant was in India, the Respondent offered her work and for obvious reasons the Applicant did not accept the offer. That the Applicant chose to leave Australia after not receiving any shifts from Placard for a period of time, which is consistent with the nature of labour hire work, is conduct which cannot be said to be caused by the Respondent.

[23] The Respondent says that the Applicant is still current and active on its books. It says that just because the Applicant did not work for Placard for a period of time, it is not to say that a position will not come up for her in the future or with another client of the Respondent. The Applicant concedes that she was still on the Respondent’s books 39 and she accepts that the availability of work is completely dependent on the client business needs.40

[24] The Respondent makes good its point by pointing to clause 3.3 of the Agreement which says the following:

“We will keep you on our register unless:

a) We don’t hear from you for 3 months;
b) You advise us you are no longer interested in seeking work;
c) Your registration with any relevant registration or licensing authority has expired or a current copy is not on our file; or
d) We receive substantiated report(s) of unsatisfactory work performance or conduct;

in which case we may remove you form our register”. 41

[25] The Respondent says that none of the above occurred in the present case. 42 Further, it asserts that there is no identifiable conduct on the part of the Respondent that demonstrates any intention to bring the employment to an end.43

[26] An employee is dismissed if the actions of the employer result directly or consequentially in termination of employment and the employee does not voluntarily leave the employment relationship. 44 When an employee is employed by a labour hire company under an agreement that provides for the employee to be placed in the premises of another entity so that the employee is “on hire”, the underpinning employment relationship may remain in operation between placements, depending on the terms of the agreement and the particular facts.45 This seems not to be the case here as was accepted by the Respondent.46 Generally, the nature of casual employment is that employment ends at the conclusion of each engagement. This is recognised by the method for calculating a period of service and employment of a casual employee found in s.384(2)(a) of the Act. However, for there to be a dismissal of a casual employee, there must be more than merely ending of employment by reason only of the casual nature of the employment or the terms of the agreement under which that casual is employed or engaged.

[27] The Applicant did not raise any probative evidence which supports her contention that she had been dismissed by the Respondent. There is nothing in the materials before me which supports the Applicant’s belief that the employment was terminated at the Respondent’s initiative.

[28] The casual employment came to an end because ultimately a decision or act by Placard not to offer further shifts for the time being, based on its then current business need. That is the nature of an on-hire relationship.

[29] In Derar v Recruitco Pty Ltd 47 (Derar) O’Callaghan SDP considered the circumstances of the ending of employment of an on-hire casual employee which were factually very similar to those in this case. In Derar the Senior Deputy President reasoned as follows:

“[27] Mr Derar’s application was made on the basis that he was an employee of Recruitco and that he was dismissed by Recruitco. The standing of employees engaged as labour hire employees has been considered in numerous matters by the Commission and by various courts. 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.”
(references removed)

[28] In this matter I am satisfied that there is no question that Mr Derar was just such an employee. Mr Derar’s circumstances replicate the normal arrangement described by Merkel J in Damevski v Giudice and Other:

“However, the present case differs in significant respects from those cases. In those cases, in general, the hiring agency interviewed and selected the workers, and determined their remuneration, without reference to the client. Usually, a client requesting a worker with particular skills was provided with one, who may or may not have been “on the books” of the hiring agency at the time the order was placed. The workers of such hiring agencies were usually meant to keep the agency informed of their availability to work, and in many cases were not to agree to undertake work for the client which had not been arranged or directed by the hiring agency. Equipment was either supplied by the worker themselves, or by the hiring agency, except for specialist safety equipment which the client often supplied. Dismissal of a worker was only able to be effected by the hiring agency. The client can only advise the hiring agency that the particular worker is no longer required by it. Had AICA/MLC acted as a labour hiring agency for Damevski to contract his services to other cleaning companies, as suggested in the chart and in the information pack, then the decisions in the above cases may have been applicable to this situation. However, that did not eventuate in the present case.”

[29] I do not consider that Mr Derar’s substantial period of assignment with IGA changed his employment contract such that he was no longer an employee of Recruitco but in any event, the only issue here is whether he was an employee of Recruitco and was dismissed by Recruitco. I note that while both parties were represented in this matter little argument was put to me in these respects.

[30] The answer to those questions must be that Mr Derar was a Recruitco employee and that, upon the termination of his assignment to IGA there was an obligation under the agreement for on-hire employment signed by Mr Derar for Recruitco to consider him for work. Clause 3.7 of that agreement is particularly significant in this respect: 

“Neither your registration with us, nor anything contained in this agreement, creates any relationship of employment. However, each time that you accept an assignment, you will be entering into a new contract of employment with us. The terms of those contracts will include the terms that apply to assignments as set out in clauses 2.2, 2.3, 3.8, 4, and 7 of this agreement together with such other terms as may be agreed at that time.”

[31] It seems clear then that under this contractual arrangement each employment assignment stands alone. It is equally clear that once an assignment concluded there was no enduring employment relationship between Mr Derar and Recruitco. No payment was made and, to the extent that there was a binding commercial relationship, this was defined by the On-Hire Agreement and cannot be regarded as an enduring employment contract. This means that, unless the termination of Mr Derar’s employment is otherwise excluded by s.386, he was dismissed for the purposes of that section.

[32] Pursuant to s.386 a dismissal is not at the initiative of the employer if the employment was for a specified period of time or a specified task and was terminated when that time expired or that task was completed. In Mr Derar’s circumstances he was not employed for a specified period of time. The issue then goes to whether he was employed for a specified task in terms of his assignment to IGA.

[33] The ‘On-Hire Agreement’ defines an “Assignment” in the following terms:

“In this Agreement:

“assignment(s)” means placement as one of our employees to perform work for one of our clients on an on-hire basis as described in any job description that we may provide to you and as may be varied by us from time to time.”

[34] The concept of an assignment incorporates significant scope for flexibility and for the functions required of Mr Derar to be changed in a fashion inconsistent with the automatic cessation of employment once a specified task is concluded. All of this occurs effectively at the discretion of the host business. The more substantive issue is whether the assignment to IGA itself should be regarded as a specified task such that whenever a host organisation ends an assignment that has the automatic effect of terminating the employment relationship.

[35] I acknowledge at the outset that this issue has significant implications for casual labour hire employees engaged in the same manner as Mr Derar. It also has implications for labour hire employers with little or no control over the actions of a host organisation. Nevertheless it represents a matter of a character which Marshall J described in Damevski as a question of jurisdictional fact.

[36] In Drury v BHP Refactory Pty Ltd Wilcox J referred to the concept of a specified task as it applied in relation to unfair dismissal restrictions at that time:

“Counsel argues that the Rooty Hill job was a ‘‘specified task’’ for the purposes of par (b). He is driven by the logic of that argument to say that par (b) applies whenever an employer employs a person to work on a particular project, whatever its size and duration. I do not think this is correct. The words ‘‘for a specified task’’ qualify the words ‘‘contract of employment’’. The contract of employment must be for a specified task; it must be a contract under which the employee is to carry out a specified task. The words ‘‘for a specified task’’ have nothing to do with the employer’s task, or project. This seems clear as a matter of grammar and it makes sense in policy terms. One can understand a view that the protections provided by Div 3 of Pt VIA should not be available to people who undertake only a specified task. Especially after the task is completed, it would be anomalous to restrict the employer’s right to terminate the contract of employment. Bearing in mind that many projects undertaken by employers continue for many years, while employees come and go, it would be equally anomalous to exclude relief under Pt VIA simply because the employee was engaged in connection with a particular project.”

[37] The Explanatory Memorandum addresses s.386(2)(b) in the following terms:

“1533. In relation to employment for a specified task, paragraph 386(2)(a) only applies where it was specifically intended at the start of the person’s employment that the person’s employment would be terminated on the completion of a specified task. It is not designed to cover persons who were simply engaged in connection with a particular task at first instance (e.g., to work on a particular project) but whose employment was intended to be ongoing.”

[38] It is clear that, almost by definition, Recruitco does not operate to manufacture, sell or produce anything in its own right. It operates to provide labour to businesses that undertake those functions. If an employee works for a labour hire company in anything other than an administrative function they cannot expect to remain employed unless they are on assignment to a host organisation. The ‘On-hire’ agreement clearly establishes that employment is limited to assignments which are themselves controlled by the host organisation.

[39] I have concluded that in this case, where the employment offer is clearly restricted to an engagement by a host organisation, that must define the specific duration of that particular employment arrangement. Accordingly, Mr Derar was engaged for a specified task. That task concluded when IGA terminated the assignment. It follows then that Mr Derar was not dismissed for the purposes of s.386 and accordingly, is not able to pursue this application. Had Mr Derar been dismissed by Recruitco whilst his assignment to IGA continued, a different conclusion relative to s.386 would have resulted. In this instance however, it was the termination of the assignment with IGA which ended the employment with Recruitco. 48 [Endnotes omitted]

[30] I agree generally with the Senior Deputy President’s reasoning and regard much of it as apposite in this case but not to the conclusion at [39]. It seems to me that the casual employment ended because of a combined effect first, of a decision by the host regarding the assignment and second by operation of the on-hire agreement which brings the casual employment to an end at the ending of an assignment, there being no enduring employment relationship beyond each assignment. That would also be true pursuant the contract of employment created by the assignment. In the result there could not have been a termination at the employer’s initiative. The termination occurred according to the terms, that had been agreed, of the assignment agreement and the contract of employment created by the assignment.

[31] The same is true in the instant case. The employment was terminated not because of any act of the Respondent. The employment ended because the assignment ended according to the terms of the Agreement, and the contract of employment created by the assignment to Placard. The act of ending the assignment was an act of Placard. The ending of the employment was the consequence of the agreed terms of the Agreement not an act of the Respondent. In fact the Respondent took steps to continue or renew the employment relationship by offering further assignments in accordance with the Agreement.

[32] It follows that there was not a dismissal within the meaning of s.386(1) of the Act because there was not a termination of the Applicant’s employment at the Respondent’s initiative.

Conclusion

[33] I am satisfied that the Applicant is not a person who has been dismissed within the meaning of s.386(1) of the Act. As a consequence, I am satisfied that the Commission does not have jurisdiction to deal with the Applicant’s purported unfair dismissal application. Accordingly, the application is dismissed.

[34] An order giving effect to this decision is separately issued in PR591999.

DEPUTY PRESIDENT

Appearances:

Mrs A Singh, acting on her own behalf.

Mr A Denton, Solicitor for Labourforce Impex Personnel Pty Ltd.

Hearing details:

2017.

Melbourne

February 7.

Final written submissions:

Applicant’s Final Submissions dated 17 February 2017.

 1   Transcript PN111.

 2   Ibid; see also Respondent’s Outline of Submissions dated 1 February 2017 at [4].

 3   Transcript PN158 – PN160.

 4   Transcript PN480.

 5   Respondent’s Outline of Submissions dated 1 February 2017 at [5].

 6   Transcript PN213; see also Exhibit 2, Agreement with Registrant For On-Hire Employment.

 7   Transcript PN209 – PN214 and Transcript PN221 – PN223.

 8   Exhibit 2, Agreement with Registrant For On-Hire Employment, at clause 3.7.

 9   Transcript PN111.

 10   Transcript PN123.

 11   Exhibit 1, Applicant’s payslips from the Respondent with dates ranging from 29 March 2016 – 4 October 2016.

 12   Exhibit 4, email from Applicant’s husband to Jo Castelli of Labourforce, dated 11 October 2016 at 9.39pm.

 13   Exhibit 3, text message dated 4 October 2016 at 7.32pm.

 14   Email from the Applicant to Chambers, dated 6 February 2017 at 2.31pm.

 15   Exhibit 3, text message dated 7 October 2016 at 4.35pm.

 16   Exhibit 3, text message dated 7 October 2016 at 4.36pm.

 17   Exhibit 4, email dated 11 October 2016 at 9.39pm.

 18   Exhibit 4, email dated 12 October 2016 at 8.54am.

 19   Exhibit 1, email dated 14 October 2016 at 6.03pm.

 20   Exhibit 1, email dated 15 October 2016 at 9.19am.

 21   F2 Application lodged on 30 October 2016, at question 1.2.

 22   Transcript PN151.

 23   Transcript PN407 – PN411.

 24   Exhibit 5, email dated 28 November 2016 at 10:09am.

 25   Exhibit 3, text message dated 28 November 2016 at 11.12am.

 26   Exhibit 3, text message dated 28 November 2016 at 3.55pm.

 27   Transcript PN409 – PN411.

 28   Exhibit 5, email dated 30 November 2016 at 2.50pm.

 29   Exhibit 3, text message dated 7 December 2016 at 11.16am.

 30   Exhibit 3, text message dated 7 December 2016 at 5.52pm.

 31   Email from the Applicant to the Fair Work Commission, dated 7 December 2016 at 5.07pm.

 32   Transcript PN47 – PN48, Transcript PN123 and Transcript PN366 – PN368.

 33   Transcript PN151.

 34   Exhibit 4, email from Jo Castelli of Labourforce to the Applicant’s husband, dated 12 October 2016 at 8.54am and Exhibit 1, email dated 15 October 2016 at 9.19am

 35   Exhibit 4, email from Jo Castelli of Labourforce to the Applicant’s husband, dated 12 October 2016 at 8.54am

 36   Exhibit 1, email dated 15 October 2016 at 9.19am.

 37   Transcript PN351 – PN352.

 38   Transcript PN422 – PN424.

 39   Transcript PN202 –PN203.

 40   Transcript PN22.

 41   Exhibit 2, Agreement with Registrant For On-Hire Employment, at clause 3.3.

 42   Transcript PN229.

 43   Transcript PN510.

 44   Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 at [205] – [206]; see also Fair Work Act 2009 (Cth) s 386.

 45   Jayleen Kool v Adecco Industrial Pty Ltd T/A Adecco (2016) FWC 925 at [50].

 46   Transcript PN497 – PN506.

 47   Derar v Recruitco Pty Ltd [2013] FWC 9791.

 48   Ibid.

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