Fair Work Act 2009
s.365—General protections

Warren Patterson
v
NX Blue Pty Ltd, George Ayoub, Salini Australia Pty Ltd
(C2021/5330)

Application to deal with contraventions involving dismissal – jurisdictional objection – whether the applicant was dismissed from his employment – contractor vs employee – forced resignation – constructive dismissal – terms of written contract – assignments and engagements – the end of one engagement was not a dismissal – application dismissed.

Overview

[1] Mr Warren Patterson alleges that he was dismissed from his employment with NX Blue Pty Ltd in contravention of the general protection provisions of the Fair Work Act 2009 (Cth). Mr Patterson was employed on a casual basis and NX Blue Pty Ltd supplied his labour to its client, Future Generation Joint Venture. The client decided that Mr Patterson was not suitable for ongoing work at one particular site and so he was demobilised from that site. In this matter I must determine whether Mr Patterson was dismissed by NX Blue Pty Ltd when he was demobilised.

[2] Mr Patterson was subject to a written contract of employment which, by its terms, allowed his employer, NX Blue Pty Ltd (“NX Blue”), to allocate and terminate assignments. Future Generation Joint Venture (“FGJV”) is a joint venture created specifically to build the Snowy 2.0 project on behalf of Snowy Hydro Limited (“the FGJV Project”). The employing entity within the FGJV is Salini Australia Pty Ltd 1 (“Salini”). Mr George Ayoub is an employee of Salini and is the person who allegedly decided that Mr Patterson was not suitable for engagement at the Lobs Hole site.

[3] Mr Patterson alleges that Mr Ayoub decided that he was not suitable for engagement at Lobs Hole because Mr Patterson had exercised certain workplace rights. Mr Patterson alleges that NX Blue dismissed him because of Mr Ayoub’s decision and therefore NX Blue contravened the general protection provisions of the Fair Work Act 2009 (Cth) (“FW Act”) and Mr Ayoub and Salini also contravened the general protection provisions as accessories to NX Blue’s contravention.

The Commission’s task

[4] The Full Court in Coles Supply Chain v Milford (2020) 300 IR 146, [2020] FCAFC 152 (“Milford”) made the following relevant observations about the FWC’s capacity to deal with applications under s.365 and antecedent disputes about dismissal:

a) The FWC’s non-determinative powers to deal with a dispute under s.368 are only enlivened if an application is properly made under s.365. The proper making of an application under s.365 is an essential precondition to the FWC’s authority to perform its functions under s.368 (at [51]).

b) a dispute about whether a person has been dismissed raises an antecedent issue going to the existence of the FWC’s authority to compel an employer to participate in its conciliation processes (at [65]).

c) it is open for a respondent to assert that there has been no dismissal, which gives rise to a dispute on that question that falls to be determined under s.365 (at [67]).

d) that dispute must be resolved before the FWC’s powers under s.368 can be exercised at all (at [67]).

e) the FWC is entitled to determine the limits of its authority to deal with a dispute under s.368, although it has no authority to conclusively determine those limits (at [43]).

f) in so determining the limits of its authority the FWC may determination matters of fact (at [71]).

g) the Federal Court or the Federal Circuit Court has the power to judicially determine whether a person is entitled to make an application to the FWC (at [74]). The FW Act establishes alternative pathways for an applicant and prospective litigant and a court might decline to recognise an “application” or resulting certificate is valid when determining an objection to competency of a legal proceeding under s.370 of the FW Act (at [75]); and

h) the determination by the FWC is not authoritative in the sense of being final. If the FWC errs in determining a question upon which its authority depends, it will commit jurisdictional error by wrongfully denying that it has the authority to “deal with the dispute” under s.368 of the FW Act (at [79]).

[5] Therefore the overall task of the Commission in this application is to determine whether there was a dismissal.

The contract of employment

[6] On 31 March 2021 Mr Patterson signed a “Letter of Engagement with NX Blue Pty Ltd” that included the following terms:

“Casual engagements, as required, on the Future Generation Joint Venture (FGJV) or elsewhere as reasonably directed by the employer. This initial assignment is on a casual basis and the length of tenure is at the discretion of FGJV. Termination of your engagement on an assignment will not give rise to a termination of your casual employment with NX Blue unless you are expressly advised of this in writing.

…

Initial assignment –Snowy Hydro 2.0 project belt

…

Your casual employment is governed by the Terms and Conditions in our Application Form signed by you on [21/12/2020] (Terms & Conditions), the NX Blue Enterprise Agreement 2019 (Enterprise Agreement) and applicable legislation. This includes, but is not limited to, the National Employment Standards in the Fair Work Act 2009. Neither the Enterprise Agreement nor any applicable legislation are incorporated into your contract of employment.

As a casual employee, NX Blue reminds you that it is under no obligation to offer work to you and you may accept or reject any offer of work made by NX Blue. There is no guarantee of ongoing or regular work.

Unless otherwise notified, this letter sets out the specific arrangements for any casual engagements on your initial assignment and this letter overrides the Terms and Conditions to the extent of any inconsistency.

Your employment may be terminated by either party at any time by providing notice as specified in the Enterprise Agreement.

…

I, Warren Patterson, have read and understood this letter and accept the offer of assignment from NX Blue on the terms and conditions set out in this letter. I understand that each engagement will constitute a separate contract of employment between us.”

The evidence

[7] As the contract denotes, Mr Patterson was employed on a casual basis. He says he was told at an interview that the project “would be underway for approximately the next five years and that if everything worked out as planned [he] would be transferred from casual to permanent employment in due course.”

[8] On 12 August 2021 NX Blue was advised by the FGJV that Mr Patterson and five other employees should be “demobilised” from the project, which had the effect of ending Mr Patterson’s assignment to the FGJV Project.

[9] On the same day Mr Patterson was told by telephone that his “assignment at Lobs Hole” was complete and that NX Blue would look for other assignments for him in other areas of the FGJV Project or closer to home. Mr Patterson was told that he remained an “active employee of NX Blue”. Mr Patterson was asked to provide an updated resume and additional Verification of Competency/skills (VOCs) so that he could be matched with other casual assignments, although he does not accept that this was a genuine offer.

[10] On 13 August 2021 Mr Patterson asked for a “separation certificate with details of revoked contract” which prompted the following text message exchange the next day:

[11] Mr Patterson gave evidence of his reasons for requesting a Separation Certificate:

“I considered I had been dismissed from my employment on the FGJV Project and I had no faith that NX Blue would genuinely try to locate further employment for me on either the Project or elsewhere. I considered that Ms Gill’s statements to the effect that NX Blue would try to source other employment for me to be a token gesture intended to keep me quiet and appease me. It was unrealistic to think that NX Blue would find me any other work on the Project and given the travel restrictions imposed in relation to the COVID 19 Pandemic, I could only work in a confined geographic region (often referred to as the “border bubble”) in any case.

After speaking with Ms Gill I considered that in the absence of an income from NX Blue I would need to access any funds available to me in order to meet my living expenses until I could find alternative employment. As such, on 16 August I sent the correspondence contained in Attachment GC-6 to the Gill Statement.

In that correspondence, I stated that my contract had been terminated and requested a “separation certificate” from NX Blue. I did this because I understood I would need such a document in order to access funds available to me through my severance fund, known as “Protect.””

[12] On 1 September 2021 Mr Patterson provided his updated resume by email and a further email the next day, 2 September 2021.

[13] On 2 September 2021 Mr Patterson also filed an application under s.365 of the FW Act alleging that he was dismissed from employment in contravention of the general protection provisions of the FW Act.

[14] NX Blue received Mr Patterson’s application on 14 September 2021 and has taken no steps to find Mr Patterson work since then.

Disingenuous and tokenistic?

[15] Mr Patterson thought NX Blue was disingenuous and tokenistic in its assurances that it was looking for other assignments for him. There is no objective evidence that supports or debunks Mr Patterson’s suspicions. NX Blue pressed Mr Patterson for an updated resume and VOCs, which is conduct consistent with it looking for other work for him but is the conduct that Mr Patterson regarded as “tokenistic”.

[16] There was no evidence from Salini or any decision maker on behalf of the FGJV Project about the decision to “demobilise” Mr Patterson on 12 August 2021. There is no evidence either way as to whether there was any prospect of Mr Patterson being offered work on the FGJV Project. It is concerning that in the email sent to NX Blue that Mr Patterson and five other employees were not only demobilised but were also said by the FGJV Project to be “unsuitable for duties”. The reference to being unsuitable for duties is superficially an indication that somebody on the FGJV Project has a concern about Mr Patterson and the other employees named. However it is not sufficiently clear on the evidence that this is the case. It is possible, for example, that the FGJV Project decided that Mr Patterson was suitable for other work but not suitable for the specific work at the specific location in his first assignment.

[17] In Mr Patterson’s evidence he describes some heated conversations with representatives of the FGJV Project in the days leading up to 12 August 2021 which are consistent with Mr Patterson’s suspicion that he was no longer welcome to work on the FGJV Project.

[18] The fundamental basis of Mr Patterson’s case is that he says that a dismissal did take place upon the ending of his first assignment with the FGJV Project because the reality of the situation was that the end of the particular assignment, which happened to be Mr Patterson’s first assignment, Mr Patterson was not going to be offered any further work on the FGJV Project or any further work for NX Blue. Mr Patterson says that the statements by NX Blue that it would continue to search for assignments for Mr Patterson were disingenuous.

[19] It may be that the corporate mind of the FGJV Project was closed to the possibility of Mr Patterson being offered any further assignments, but there is simply no evidence either way on that point. It is not surprising that neither Mr Ayoub or Salini have led any evidence at this interlocutory stage of the process. The reasons why FGJV Project’s decided to demobilise Mr Patterson are central to Mr Patterson’s cause of action against the alleged accessories, so there is little incentive to unnecessarily expose any witnesses to an early round of cross-examination.

[20] It is possible that NX Blue’s corporate mind was closed to the possibility that Mr Patterson would be offered any further assignments, and that NX Blue was disingenuously going through the motions of telling Mr Patterson that it would look for future work for him, but there is not sufficient evidence before me to be satisfied of this matter.

[21] NX Blue did lead evidence from Ms Gill who indicated that she was genuinely seeking information from Mr Patterson with the actual intention of proposing further assignments for him if possible. When asked in cross-examination whether she genuinely believed there was a possibility that Mr Patterson could undertake work at a different location, she replied “absolutely”, and gave evidence that she had specifically asked Mr Patterson for updated VOCs so that she could skill match him to the plant at Polo Flat.

[22] Mr Patterson submits that I should not accept this evidence in light of the surrounding circumstances of the case, particularly in light of the fact that there appeared to be a suitable position available for Mr Patterson in August 2021 and that Ms Gill did not specifically refer to this other position when conversing with and corresponding with Mr Patterson in the period between the end of his assignment on 12 August 2021 and the filing of his application in the Commission on 2 September 2021. Mr Patterson also relies on the fact that he was an experienced crane driver and was not subject to any COVID-19 related geographical limitations (i.e. he was not prevented by any public health orders from continuing to work at the FGJV Project).

[23] Ms Gill gave evidence that she did not discuss any other position with Mr Patterson, and that she was not aware of anyone else at NX Blue discussing any particular position with Mr Patterson. She says, however, that she was waiting for Mr Patterson to provide further information about any competency accreditations Mr Patterson had obtained during his first assignment. I note in this regard that one of the areas of concern that sparked difficult conversations between Mr Patterson and representatives of the FGJV Project was about the recording of certain Verification of Competency records maintained by the FGJV Project (as opposed to records maintained or available to NX Blue).

[24] NX Blue submits that there were two options available to Mr Patterson at the time that the first assignment ended, one being to co-operate with NX Blue to facilitate a new assignment, or secondly to take the more combative approach of insisting that his employment had been terminated and asking for an Employment Separation Certificate.

[25] Mr Patterson obviously had very strong suspicions about NX Blue’s intentions. I do not see however that NX Blue did anything beyond terminating the initial assignment that could have objectively heightened Mr Patterson’s suspicions. That is, NX Blue did not engage in any conduct or make any representations to Mr Patterson that were inconsistent with its stated intention of finding Mr Patterson further work. In these circumstances Mr Patterson’s case rises no higher than his suspicion that NX Blue acted disingenuously. There was evidence of further steps that NX Blue could have taken shortly after 12 August 2021 that it did not take, including steps to actively try and secure Mr Patterson an assignment at Polo Flats. To the extent that this in action might be understood to be an omission, the omission is consistent with Mr Patterson’s suspicions, but I do not regard such an omission to be evidence of disingenuous conduct by NX Blue.

Principles

[26] Section 386 exclusively defines the circumstances which give rise to a person being “dismissed” by an employer for the purposes of Part 3-2 Unfair Dismissals of the FW Act. 2 “Dismissed” for the purposes of the FW Act more generally is defined in s.12 by reference to s.386. The provisions of s.386 have been applied by courts in relation to s.365 General Protections matters.

[27] In NSW Trains v James 3 the majority found that “the expression ‘employment … has been terminated’ in s.386(1)(a) means termination of the employment relationship and/or termination of the contract of employment”.4

[28] In this matter Mr Patterson relies on the acknowledgment provision in the contract of employment, that include the words “I understand that each engagement will constitute a separate contract of employment between us” and says that a contract of employment ended on 12 August 2021.

[29] Mr Patterson also argues that because NX Blue had no real intention to offer any further work, the employment relationship also ended on 12 August 2021.

[30] The parties agree that Mr Patterson’s contract accommodates periods of employment where Mr Patterson is provided work on a casual basis by way of an assignment, and periods of employment where no work is offered. It is also accepted that the mere termination of one assignment is accommodated by the contract and does not necessarily constitute a dismissal from employment.

[31] NX Blue submits that “there is no reason not to regard the letter of engagement as a true, reliable and realistic statement of the rights and obligations to which the parties agreed to bind themselves and to apply the terms of that document to the present case” relying on the High Court’s decision in WorkPac Pty Ltd v Rossato 5 (Rossato).

[32] NX Blue submits that:

“Although the Applicant’s casual assignment on the FGJV Project came to an end at the initiative of the FGJV on 12 August 2021, this did not amount to a dismissal by NX Blue nor did it bring to an end the Applicant’s employment. The Applicant has not been “expressly advised in writing” of the termination of his casual employment by NX Blue which is required by the letter of engagement to bring the employment to an end at the initiative of the employer.

In fact, as set out above, the employer took active steps to inform the Applicant that he was still an active employee and that it was willing to look for other casual assignments for him (subject to him providing an updated resume and VOC/skills information).

If FWC determines that the casual employment has ceased, this was at the initiative of the Applicant and not NX Blue by the Applicant either:

(a) requesting a separation certificate from NX Blue on 13 and 16 August 2021 so that he could claim severance money from Protect; or

(b) alternatively, filing a general protections application on 2 September 2021.

The jurisdictional objection should be upheld and the application dismissed.”

[33] Salini and Mr Ayoub submit that the terms of the employment contract should be given primacy (per Rossato) and that:

“…the Applicant cannot have been "dismissed" at his employer's initiative when he was demobilised from the Project as there was no dismissal at all, because the Applicant remained employed while the First Respondent looked for further casual assignments for him and he had not been expressly advised in writing of any termination (see Gill Annexure CG-1, clause "Initial Client Assignment"; see First Respondent's submissions, [18]-[19]).

In the alternative, if the Applicant's casual employment has ended, it is due to the effluxion of the engagement, and not at the "initiative of the employer". For casual employees there is no obligation to provide further assignments or engagements, and casual employment may be taken to have ended at the time the last casual engagement is performed (see clause 6.3 of the NX Blue EA; see also Milford v Coles Supply Chain Pty Ltd T/A Coles Heathwood Distribution Centre [2019] FWC 844 at [10]ff, [47]).”

[34] There is no suggestion that the written contract between Mr Patterson and NX Blue did not reflect the true terms and conditions of employment, nor is there any suggestion that the terms of the contract were breached by NX Blue.

[35] I make the following observations about the written contract:

a) the document’s title is “Letter of engagement with NX Blue Pty Ltd”;

b) the document says it sets out the terms of “a casual assignment”;

c) the substantive part of the document is a table under the heading “Details of the assignment”;

d) The “Initial Client Assignment” is then described to be “casual engagements, as required, on the [FGJV] or elsewhere as reasonably directed by the employer”;

e) in this context the document says that the termination of an “engagement on an assignment” will not give rise to a termination of the casual employment;

f) the “initial engagement” is described to be “a casual engagement on a 14/7 roster”; and

g) the acknowledgement in the document indicates that each “engagement” will constitute a separate contract of employment.

[36] The important events that occurred in relation to Mr Patterson’s employment can be readily accommodated within the terms of the contract:

a) the “initial client assignment” was broader than just the work at Lobs Hole and incorporated possible or other work at FGJV sites (or even “elsewhere as directed by [NX Blue]”);

b) the tenure of the initial client assignment was at the discretion of FGJV;

c) the work performed by Mr Patterson for the FGJV at the Lobs Hole site was his initial “engagement”;

d) the initial engagement was then terminated;

e) the termination of the initial engagement did not “give rise to a termination of [Mr Patterson’s] casual employment”;

f) NX Blue was not otherwise under any obligation to offer Mr Patterson work, and there was no guarantee of ongoing or regular work; and

g) the potential work at Polo Flat that Ms Gill was hoping to match Mr Patterson to, would have been Mr Patterson’s second “engagement” within the same “client assignment”;

h) if Mr Patterson had been offered an engagement at Polo Flat, that engagement would have constituted a separate contract of employment to the engagement at Lobs Hole.

[37] On the evidence I cannot find that NX Blue ended the “assignment” when it ended Mr Patterson’s “engagement” at Lobs Hole. The contract specifically allows for an assignment to endure despite a particular engagement ending.

[38] It is less clear from the terms of the written contract whether any contract of employment was terminated, and if so, whether that termination was at the initiative of the employer.

[39] The written contract contains two superficially inconsistent provisions:

(i) provisions that accommodate a single ongoing employment contract with client assignments and specific engagements; and

(ii) The acknowledgement that each specific engagement “will constitute a separate contract of employment between us”.

[40] I do not understand the words of the acknowledgement to mean that every time there is a change in the terms of an engagement (insofar as that term is used in the contract) there is necessarily a termination of one contract of employment and the commencement of a new contract. The “Terms and Conditions of Employment” section of the contract also says:

“This letter sets out the specific arrangements for any casual engagements on your initial assignment and this letter overrides the Terms and Conditions to the extent of any inconsistency.”

[Emphasis added]

[41] In my view the word “separate” in the acknowledgement in the contract differentiates between different conditions that might attach to different engagements. The terms attached to any one engagement operate separately to the terms attached to any other engagement and, most importantly, the whole contract of employment applies to “any” casual engagements on Mr Patterson’s initial assignment.

[42] The Full Bench in NSW Trains v James ultimately found that Mr James had not been dismissed, finding that the demotion provisions in an enterprise agreement and in Transport Regulations “displaced the contract of employment to the extent of any inconsistency” (at [123]) and permitted the demotion, and therefore no contractual provision had been repudiated (at [126]).

[43] Understood this way, the terms of Mr Patterson’s written contract permit NX Blue to terminate an engagement (such as Mr Patterson’s engagement at Lobs Hole), without terminating either the employment relationship or the underpinning contract of employment. There is not sufficient evidence to establish that NX Blue was disingenuous or tokenistic in its preparedness to offer Mr Patterson further engagements. As such there is not sufficient evidence to support a finding that the employment relationship ended when Mr Patterson was “demobilised” out of Lobs Hole.

Separation certificate evidencing the end of the employment relationship(?)

[44] Mr Patterson relies on the Employment Separation Certificate issued by NX Blue and dated 16 August 2021, which indicates that the “date employment ceased” was 12 August 2021 and that the “reason for separation” was “end of season or contract”.

[45] Mr Patterson submits that his work was not seasonal and that “there is nothing in the evidence contrary to that proposition”. Mr Patterson denies that he resigned his employment and submits that:

“It is irrelevant that the Applicant requested that he be issued with the [Employment Separation Certificate]. It is clear that his subjective understanding in doing so was because he considered that his contract had been terminated.5 If the First Respondent’s true position was that the Applicant’s employment had not ended then it should not have issued the [Employment Separation Certificate]. Alternatively it was open to the First Respondent to indicate that the Applicant employment ceased at his own initiative. It chose not to do this.”

[46] Mr Patterson relies upon the Employment Separation Certificate as a written proof of the termination of his employment. Mr Patterson pressed for the statement “so I can claim my severance money from protect.” MX Blue disputed that any termination had taken place, and when proving the Separation Certificate by email, Ms Hutchinson (NX Blue Payroll/Accounts) included the following words:

“Hi Warren,

Thanks for your request.

For clarity and as discussed with Caitriona you haven’t been terminated, and we can still look for other assignments for you.

However, as requested please find attached your separation certificate.”

[47] In the circumstances I do not accept the submission that the Employment Separation Certificate evidenced the end of Mr Patterson’s employment. Even if it did mark the end of his employment, it could not be said that the employment ended “on the employer’s initiative” for the purposes of s.386(1)(a).

Is the employment relationship still on foot?

[48] Mr Patterson made his general protections application before NX Blue has offered him any further engagements. Once NX Blue was aware of the claim against it, NX Blue stopped looking for other work for Mr Patterson. Even if the employment relationship ended at a point in time after the application commenced, there is no basis to find that a dismissal occurred prior to the day Mr Patterson commenced his claim.

[49] In this regard the circumstances are indistinguishable from those recently found by the Full Bench in Shane John Varichak v COG Regional Team Pty Ltd 6 at [58]:

“In the context of the casual employment operating in this matter and the absence of a mutual obligation to offer and accept work, we do not consider that at the time of the GP application it can be established that the Appellant had been dismissed from his employment with the Respondent. There was neither the termination of an employment contract or the employment relationship at that point. We observe that this finding is confined to the specific circumstances of the nature of the casual employment and the timing of the application evident in this particular matter. Further, the continuation of the Respondent’s position not to offer shifts to Mr Varichak may have at some point changed the status of the relationship to the extent that a dismissal would result, but it had not at the relevant time.”

Constructive dismissal

[50] In the alternative Mr Patterson submits that if the Commission finds that his employment ceased by way of resignation then a dismissal nonetheless took place because “the applicant was left with no choice but to make [his request for a Separation Certificate] … The applicant was provided with no substantive reason for his removal from the FGJV Project and thus could have no confidence that there was any realistic chance that he could be returned there.”

[51] I do not think it can be properly said that Mr Patterson was forced to resign his employment. The written employment agreement is very clear that Mr Patterson’s employment was assignment-based, and that there was no guarantee of work at any particular point in time. Mr Patterson no greater security of tenure after he was “demobilised” than beforehand.

[52] I all the circumstances I find that Mr Patterson was not dismissed and I must therefore dismiss his application. 7

DEPUTY PRESIDENT

Appearances:

Mr D Vroland for the Applicant
Ms R Bernasconi for the First Respondent
Mr T Sebbens for the Second and Third Respondents

Hearing details:

2021.
Sydney (By Video using Microsoft Teams)
December 22.

Final written submissions:

Applicant: 27 April 2022.

Second and Third Respondents: 27 April 2022.

Printed by authority of the Commonwealth Government Printer

<PR742933>

 1   In his application, Mr Patterson names Clough Projects Pty Ltd as the Third Respondents but was granted leave to amend his application to instead name Salini as the Third Respondent.

 2   Shane John Varichak v COG Regional Team Pty Ltd [2022] FWCFB 37 applying Coles Supply Chain v Milford (2020) 300 IR 146, [2020] FCAFC 152; Fair Work Ombudsman v Austrend International (2018) 273 IR 439, [2018] FCA 171 and Morris v Allied Express Transport [2016] FCCA 1589 at [116] and [117].

 3   [2022] FWCFB 55 at [45].

 4   Ibid at [45].

 5   (2021) 309 IR 89; [2021] HCA 23.

 6   [2022] FWCFB 37.

 7   PR742934.