DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Robert Smith
v
Goldfields People Hire Pty Ltd ATF Goldfields People Hire Trust T/A GPH Recruitment
(U2017/10373)

Unfair dismissal – jurisdictional objection – whether reasonable expectation of continuing employment – whether employed for a specified task.

[1] On 25 September 2017, Mr Robert Smith applied to the Commission under section 394 of the Fair Work Act 2009 (Act) for a remedy in relation to alleged unfair dismissal. Mr Smith alleges that his employment was terminated by Goldfields People Hire Pty Ltd (Goldfields) on 7 September 2017.

[2] On 4 October 2017, Goldfields objected to the application on jurisdictional grounds on the basis that:

1. As a casual employee, Mr Smith had no reasonable expectation of continuing employment for the purposes of section 384(2)(a) of the Act;

2. In the alternative, Mr Smith was employed for discrete specified tasks, in each case shorter than the minimum employment period required under section 382(a); and

3. In the alternative, Mr Smith was employed for a specified task which came to an end, and there was no termination at the initiative of the employer.

[3] The parties filed materials in support of their positions on 19 and 30 October 2017 and 3, 9 and 10 November 2017. On 10 November 2017, a telephone hearing was held to deal with the jurisdictional objections. The parties were each represented by paid agents after permission was granted for them to appear under section 596 of the Act.

[4] This decision deals with the jurisdictional objections.

Background

[5] Goldfields is a labour hire and recruitment business with more than 15 employees. It describes its business as one that “refers people as candidates for placements at other external businesses and offers labour hire services”. It has a “clearly set up structure and engagement practice to differentiate between internal permanent employees and labour hire candidates placed on a casual basis.”

[6] The following facts are either agreed or not contested:

1. Mr Smith was employed by Goldfields as a casual MC Driver from 1 November 2016 to 7 September 2017;

2. During his period of service with Goldfields, Mr Smith drove trucks for Bis Industries Ltd (Bis), a contractor to Newmont Mining Corporation (Newmont);

3. From November 2016 to April 2017, Mr Smith worked regular shifts on the Bis “slurry run” on a 4 day on, 4 day off roster, between the hours of approximately 4.30am to 6.00pm;

4. From April 2017 until September 2017, Mr Smith worked on the “copper concentrate run” moving copper ore from Boddington Mine to Bunbury Port. Over a 3 week roster cycle, Mr Smith worked 4 days on, 3 nights on, 3 days off, 3 days on, 4 nights on, 4 days off. His actual start and finish times varied.

[7] Mr Smith’s employment appears to have been regulated by a common law contract of employment informed by a “Registration Pack” completed on 1 November 2016. The Registration Pack includes a Registration Form, Casual Employment Declaration, Application for Employment, Pre-employment Medical Questionnaire, ‘Authority for Deduction’ form and an ‘Accident Reporting and Workers Consent’ form.

Did Mr Smith have a reasonable expectation of continuing employment?

[8] To be protected from unfair dismissal, a person must have completed a minimum period of employment. 1 Except in the case of small business employers, that period is 6 months. However, under section 384(2)(a) of the Act, a period of service as a casual employee does not count unless the employee was employed “on a regular and systematic basis” and “had a reasonable expectation of continuing employment by the employer on a regular and systematic basis”.2

[9] Goldfields argued that as a casual employee, Mr Smith had no reasonable expectation of continuing employment on a regular and systematic basis. It relied on the Registration Pack and in particular Mr Smith’s acknowledgement in his Casual Employment Declaration that:

“I understand the conditions of working for a labour hire company and that the length of my assignments will depend on my level of performance and competency, my classification and the requirements of the clients of GPH recruitment. I understand and accept that with any assignment, there can be no expectation of permanent employment.”

[10] Goldfields also argued that if Mr Smith had a reasonable expectation of continuing employment, it was with Bis, not Goldfields. This argument is curious to say the least because on one view, it amounts to a concession that Mr Smith may have held such an expectation – albeit with a different business. In any event, the relevant inquiry involves whether Mr Smith had a reasonable expectation of continuing employment by Goldfields. I have proceeded on that basis, noting that neither party disputed that Goldfields was Mr Smith’s employer for the purpose of this proceeding.

[11] It is clear that Mr Smith acknowledged his status as a casual employee when he sought employment with Goldfields by completing the Registration Pack, and that he held that understanding for the duration of his service. The fact that he knew and accepted his status as a casual employee does not, of itself, mean he could never hold an expectation of continuing employment by Goldfields. An expectation of continuing employment is not the same as an expectation of permanent employment. Similarly, the fact that Mr Smith knew he was working “on assignment” to Bis does not mean he could never have expected his employment by Goldfields to continue (with or without that assignment).

[12] According to Mr Smith, for the duration of his service (except when undertaking induction training or on authorised leave), he worked on a regular roster system, conditioned only by his compliance with its policies and the operation of vehicles by Bis. He was on the monthly roster for the slurry run and later on the 3 week roster cycle for the copper concentrate run. He worked from the same site for the duration of his employment. He had a clear pattern of rostered hours and days and often took on extra shifts as they became available. Goldfields did not contest the evidence of Mr Smith about his working arrangements at Bis, either in relation to location, hours or patterns of work.

[13] Until he was stood down on 6 September 2017, no concerns about his performance or competency appear to have been raised with Mr Smith and there was no indication that a change in client requirements meant his employment by Goldfields was coming to an end. As to client requirements, Mr Smith gave evidence that there were slowdowns at Bis from time to time, and that when this occurred, Bis consulted with its driving teams and adjusted rosters to share the work around. There is no material before me to indicate that during his period of service as a casual employee, Mr Smith should have known that his work for Bis, or his employment by Goldfields, was unlikely to continue for some time.

[14] Having regard to all of the evidence, I am satisfied that during his period of service as a casual employee, Mr Smith was employed on a regular and systematic basis and that he had an expectation that his employment by Goldfields would continue on a regular and systematic basis. In my view, this expectation was reasonable in the circumstances.

Was Mr Smith employed under a contract of employment for a specified task?

[15] A person has been unfairly dismissed if the Commission is satisfied of matters 3 including that the person has actually been dismissed. As section 386(2)(a) of the Act makes clear, a person has not been dismissed if they were employed under a contract of employment for a specified task and their employment terminated on completion of the task.

[16] Goldfields argued that Mr Smith was employed for discrete specified tasks (first, the slurry run, and then the copper concentrate run), in each case shorter than the minimum employment period of 6 months required by section 382.

[17] The meaning of the phrase “contract of employment for a specified task”, was considered by the Full Bench in Dale v Hatch Pty Ltd 4. It requires that the specified task be identified in definite terms, either through express words in a written contract of employment, or as a matter of necessary implication. To be a contract of employment for a specified task, the contract must be “for” the specified task in the sense of having been entered into for the purpose of performing and completing that task. Critically, it must be sufficiently clear and predictable as to when the task will be completed.

[18] Mr Smiths’ Registration Pack makes clear that his employment was to comprise of one or more assignments, as advised from time to time and that, in relation to client assignments:

“…the length of my assignments will depend…”

“…the assignment in duration will be advised at the time of engagement..”

“I will undertake to confirm any new arrangements with the client prior to commencing any new assignment or task.”

“…assignments offered will vary…”

“…certain jobs that I may be assigned to…”

“When an assignment is completed, I should call my GPH Recruitment so that they are aware of the change and begin to arrange my next assignment. (I must call even if no further employment is required).”

[19] The Registration Pack, however, does not provide any detail at all about the actual task or tasks to which Mr Smith is to be, or was, assigned during his employment by Goldfields. For example, there is no advice of the fact of his assignment to Bis, or the nature of that assignment, or his transfer from the slurry run to the copper concentrate run. Other than Mr Smith’s evidence about his own verbal exchanges with Bis employees, there is no evidence that his contract of employment was in any way limited so that it would come to an end on the completion of one or more tasks. The said “task(s)” themselves are not specified at all beyond the verbal instruction to “work on the slurry run” or “move to the copper concentrate run”.

[20] If Mr Smith was first contracted to the specified task of the ‘slurry run’, there would need to be some certainty about when that task would come to an end to make the findings sought by Goldfields. The fact that the slurry run appears to have continued after Mr Smith was re-assigned to the copper concentrate run tells against a finding that in either case, his contract was for a specified task. There is no necessary implication that it was on the evidence before me.

[21] I am satisfied that after completing the Registration Pack seeking employment by Goldfields, Mr Smith was told to report to Bis on the understanding that he would be given work. In that way, he was “assigned” to work for Bis, on the basis that he would undertake any driving work it wanted him to do until further notice.

[22] I find that Mr Smith was not employed under a contract of employment for a specified task as contemplated in section 386(2)(a) of the Act when he was assigned to work on the slurry run. To the extent that his work on the copper concentrate run constituted a separate “assignment” (which I am not satisfied it was) I find that it was also not employment under a contract of employment for a specified task.

Did the contract of employment simply come to an end?

[23] Goldfields argued that there was no termination at the initiative of the employer on the basis that Mr Smith was employed for a specified task which simply came to an end.

[24] As I have found, Mr Smith was not employed under a contract of employment for a specified task. It follows that the contract of employment could not ‘simply come to an end’ once the specified task was completed.

Conclusion

[25] The jurisdictional objections to Mr Smith’s application are dismissed.

COMMISSIONER

Appearances:

K Trainer for the Applicant.

S Fletcher for the Respondent.

Hearing details:

2017.

Melbourne:

November 10.

 1   Act, s.382

 2   Act, s.384

 3   Act, s.385 and s.396

 4   [2016] FWCFB 922 at [8] – [10]

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