[2011] FWAFB 3050 [2011] FWAFB 3050 Download Word Document FAIR WORK AUSTRALIA REASONS FOR DECISION Fair Work Act 2009 s.604 - Appeal of decisions Mr Zhan Gao v Department of Human Services (C2011/3684) SENIOR DEPUTY PRESIDENT ACTON DEPUTY PRESIDENT HAMILTON COMMISSIONER MCKENNA MELBOURNE, 25 MAY 2011 Appeal against decision in transcript and order [ PR507123 ] of Deputy President Ives at Melbourne on 25 February 2011 in matter number U2010/14916. [1] On 17 May 2011 a Full Bench of Fair Work Australia (FWA) granted Mr Zhan Gao permission to appeal and upheld his appeal against a decision in transcript 1 and order 2 of Deputy President Ives. The Full Bench’s reasons for doing so are set out below. [2] In his decision and order Deputy President Ives dismissed Mr Gao’s unfair dismissal remedy application against the Victorian Department of Human Services (the department) on the basis the department was not and had not been Mr Gao’s employer. Mr Gao worked at the department from 1 April 2008 to 19 April 2010. [3] Before his Honour, the department maintained Mr Gao was on labour hire to it from Hays Specialist Recruitment (Australia) Pty Ltd (Hays). In support of this the department referred to a letter of 22 December 2010 from Mr Paul Burch of Hays to the department. Mr Burch was not called by the department to give evidence. In the letter Mr Burch said: “As requested, I confirm that Zhan Gao is engaged under a Contract for Service with Hays Specialist Recruitment (Australia) Pty Limited (Hays) and was on hired as a temporary worker to the Department of Human Services (DHS) between 1 April 2008 and 19 April 2010. At no time during the course of the assignment did DHS employ Zhan Gao. Hays has not terminated Mr Gao’s Contract for Service and we continue to seek assignments for him.” [4] The department also relied on a “duplicate of the contract which [Mr Gao] subsequently signed with Hays”. The “duplicate”, however, is a pro-forma document of Hays titled “Terms of Engagement - Australia”. The document has on it copyright “January 2010”, refers to modern awards, does not mention Mr Gao and is not signed. In our view it is improbable that it is a duplicate of a contract Mr Gao allegedly signed with Hays in 2008. [5] Further the department said its pre-employment procedures governing its employment of employees were not applied in respect of Mr Gao, his position was not advertised as a Government employee position in accordance with s.8 of the Public Administration Act 2004 (Vic), he was not part of the department’s payroll and he was not asked to provide the department with his tax file number, superannuation details, qualifications or police check. [6] The relevant evidence before his Honour from Mr Gao was that on 5 March 2008 he applied for a position with the department, was interviewed by the department for the position on 20 March 2008 and on 27 March 2008 the department asked him about his availability to work “on a contract basis”. On 31 March 2008 the department offered to Mr Gao, and he accepted, a work arrangement with the department “on a contract basis via Hays”. At that time he was advised by the department that “if [he] secure a permanent position in [the department], [the department] does not need pay placement fee to Hays”. Mr Gao agreed with his Honour that when the department put to him that its offer was a contract position, the department meant that Mr Gao would be contracted through Hays to work for it. Mr Gao said he started working for the department on 1 April 2008. On 4 April 2008 Mr Gao had his first contact with Hays, when Hays sent him an e-mail seeking from him the contact details for two referees. Mr Gao said that no-one from Hays offered him employment and he did not see or sign a contract between himself and Hays. On 19 April 2010, Hays emailed Mr Gao to advise him that his “contract with the Department of Human Services has been terminated immediately”. Mr Gao had earlier received advice from the department that he would “cease employment in SEI (South East Improvements) close of business Friday 7 May 2010.” In his view, it was clear that the department “directed Hays to terminate [his] contract immediately”. He maintained he was employed by the department as a contract project manager from 1 April 2008 to 19 April 2010. He also said Hays paid his wages from the time sheets approved by his manager in the department. [7] In his unfair dismissal remedy application, Mr Gao listed the department as “Respondent (Employer) Client” and his “Employer” as “ Hays Specialist Recruitment (Hays) ”. From this it seems that at some stage in completing the application form, Mr Gao listed Hays as his employer but subsequently crossed-out that text. In a document dated 9 December 2010 attached to the application Mr Gao said: “The terminated happened on 19/04/2010. I initially and immediately tried to resolve the disputes with the DHS at a local level. However, the DHS just concluded the matter on 03/12/2010, and I discussed this issue with my previous employer Hays recruitment yesterday.” [8] In our view the evidence in this case as to whether or not Mr Gao had a contract of employment with the department is most unsatisfactory. It is apparent from a reading of the evidence and associated documents of Mr Gao that he, as his Honour puts it, has “some difficulties with the English language”. While some of Mr Gao’s evidence and associated documents suggest he was employed by the department, other parts of his evidence and associated documents contradict or cast doubts on that. The material the department provides is insufficient for FWA to be satisfied it did not have a contract of employment with Mr Gao. In this regard, we have already mentioned the fact that Mr Burch of Hays did not give evidence. Further, we have dealt with the difficulties with the so-called “duplicate” contract. Given the department’s, as his Honour put it, “exceedingly sloppy” procedures, the fact the department’s pre-employment and other administrative procedures were not followed in respect of Mr Gao are not sufficient to establish Mr Gao was not employed by it. [9] The tribunal is required to give adequate reasons for dismissing an unfair dismissal remedy application 3 and to reach conclusions based on the evidence before it. His Honour concluded Mr Gao had never been employed by the department on the materials before him, in particular Mr Gao’s evidence. However, for the reasons we have given, we do not think a conclusion that the department was not Mr Gao’s employer was open on the evidence before his Honour. [10] Accordingly, we considered it was in the public interest to grant permission to appeal and decided to uphold the appeal, quash his Honour’s decision and order dismissing Mr Gao’s s.394 application and remit the s.394 application to Deputy President Hamilton for further consideration. SENIOR DEPUTY PRESIDENT Appearances : Z. Gao on his own behalf. J. Cooney with J. Maddison for the Department of Human Services. Hearing details: 2011. Melbourne: May, 17. 1 Transcript of 25 February 2011 in Gao v Department of Human Services at PN274–282. 2 PR507123 . 3 Edwards v Giudice and Others (1999) 169 ALR 89 at 93 and 99–100. Printed by authority of the Commonwealth Government Printer <Price code A, PR509610>