UNFAIR DISMISAL APPLICATION WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION CITATION : 2022 WAIRC 00664 CORAM :Commissioner T Kucera HEARD : WEDNESday, 7 September 2022 DELIVERED : TUESday, 13 September 2022 FILE NO. : U 89 OF 2022, B 89 OF 2022 BETWEEN : Karl Williams Applicant AND WA Main Roads Respondent CatchWords : Industrial Law (WA) - Termination of employment - Harsh, oppressive and unfair dismissal - Entitlements under contract of employment - Whether Commission has jurisdiction - Principles applied - Claim beyond Commission's jurisdiction - Application dimissed Legislation : Industrial Relations Act 1979 Result : Dismissed for want of jurisdiction Representation: Applicant : In person Respondent : Mr S Lawton Case(s) referred to in reasons: Fair Work Ombudsman v Ramsey Food Processing Pty Ltd 198 FCR 174 === REASONS FOR DECISION === ¶1 Background ¶2 On 7 September 2022, a hearing was held in relation to two separate applications, U 29 and B 89 of 2022, for the purposes of determining whether the Commission has the jurisdiction to deal with these matters. ¶3 For the reasons set out, the Applications are dismissed for want of jurisdiction. ¶4 The applications ¶5 On 4 July Karl Williams (applicant) filed two applications with the Commission: ¶6 (a) U 29 of 2022; an unfair dismissal application under s 29(1)(c) of the Industrial Relations Act 1979 (IR Act); and (b) B 29 of 2022; denied contractual benefits claim under s 29(1)(d) of the IR Act. I will refer to these matters together as the applications. ¶7 The respondent that was named as the employer in the applications was Main Roads WA (Main Roads). ¶8 Responses ¶9 On 28 July 2022 Main Roads filed Form 2A responses to the applications (responses). ¶10 In the responses, Main Roads opposed the applications on the grounds that it was not the applicant’s employer. ¶11 Main Roads contends that at all material times, it did not employ the applicant, rather the Applicant was employed by a separate entity, Labsav Pty Ltd (Labsav). ¶12 Main Roads contends that as the applicant was an employee of Labsav, the Commission does not have jurisdiction to hear and determine the applications. ¶13 Directions on jurisdictional point ¶14 On 10 August 2022, Senior Commissioner R Cosentino issued an order [2022] WAIRC 00338 which provided the following programming directions (directions): The application is listed for hearing on 7 September 2022 at 10:00am to determine the respondent’s jurisdictional objections, namely, a. Whether the applicant was employed by the respondent; b. Whether the applicant is a national system employee; and c. Whether there was a dismissal. The applicant is to file an outline of the evidence of any witness whose evidence he intends to rely upon in relation to the jurisdictional objections together with any documents upon which he intends to rely by 17 August 2022. Any outlines of witness evidence must comply with Practice Note 9 of 2021. The respondent is to file an outline of the evidence of any witness whose evidence it intends to rely upon in relation to the jurisdictional objections together with any documents upon which it intends to rely by 31 August 2022. Any outlines of witness evidence must comply with Practice Note 9 of 2021. ¶15 The applicant did not file any materials as required under direction 2. ¶16 On 1 September 2022 Main Roads filed an outline of submissions (respondent’s outline) with three annexures. ¶17 Jurisdictional hearing ¶18 The applicant, (representing himself) appeared at the jurisdictional hearing by video link from Kalgoorlie. Mr Lawton appeared for Main Roads. ¶19 At the start of the hearing, I advised the parties that as the only materials lodged pursuant to the directions were those the respondent had filed, I would be determining the matter on the filed documents. ¶20 The respondent’s outline was tendered and admitted into evidence as exhibit R1. ¶21 I advised the applicant I would be asking him some questions about R1, thereby giving him an opportunity to respond to the points advanced in the respondent’s outline. ¶22 During the hearing, I also referred to a number of the documents that were attached to the applications. Specifically, I questioned the applicant about copies of the text messages that were attached to the applications. ¶23 After questioning the applicant, I invited Mr Lawton to ask the Applicant any questions about the answers I put to the applicant. ¶24 As Mr Lawton was content to rely upon the arguments advanced in the respondent’s outline, he respectfully declined to ask the applicant any questions. ¶25 The applicant’s employment ¶26 During the hearing, I asked the applicant a number of questions about his employment. In summary the applicant variously stated the following: (a) he was employed by Ian Weary of Labsav on 4 February 2018, to work as a laboratory technician in the Main Roads Kalgoorlie-Esperance Laboratory. (b) he signed the “Offer of Employment” that is attached to the respondent’s outline and marked Annexure B. (c) he signed the “New Employee Checklist” that is attached to the respondent’s outline marked Annexure C. (d) He was paid fortnightly by Labsav for the work he performed into his bank account. (e) Main Roads “paid Ian Leary for my work”. (f) Labsav paid superannuation contributions into his “Sunsuper” account. ¶27 Regarding his daily duties and his work for Main Roads, the applicant also variously stated that: (a) he worked in the Main Roads laboratory for four and a half years. (b) he took his directions from Dave King and Brad Salmon, both of whom worked for Main Roads. (c) Brad Salmon assigned his daily duties. (d) he emailed his time sheets for the work he performed to Main Roads. (e) If he was sick, he called someone from Main Roads. (f) he had very limited contact with Ian Leary. (g) he did not have an HR department, there was no one he could talk to with any complaints, “even Ian”. (h) The decision to cease his work at Main Roads did not come from Ian Leary. (i) It was Main Roads that prevented him from finishing his contract. ¶28 The text messages referred to were evidence of the directions he received and communications with Main Roads, who directed and supervised him in his work. ¶29 Issue to be decided ¶30 Although the Commission has a wide jurisdiction under s 23 of the IR Act, to enquire into and deal with any industrial matter as defined, the Commission’s powers on claims of unfair dismissal and denied contractual benefits, may only be exercised in respect of a relationship between the employee making the claim and that employee’s employer. ¶31 As I indicated to the parties during the jurisdictional hearing, the question of whether the Commission has jurisdiction to deal with the applications depends upon a finding as to who the applicant’s employer was. Determination ¶32 Having heard from both parties on this issue I find the applicant’s employer was not Main Roads but was in fact Labsav. ¶33 The evidence I have set out in the preceding paragraph 19, particularly the documents the applicant admitted he signed and his evidence about who paid him for his work, supports a finding the applicant was by employed by Labsav. ¶34 During the jurisdictional hearing, the applicant conceded as much when he said, “I can’t submit that Ian was not my employer”. ¶35 At paragraph 1.5 of his Form 2 Unfair Dismissal Application, the applicant described his occupation as a “Construction Materials Contractor”. ¶36 The applicant described his occupation at paragraph 1.3 of his Form 3 -Contractual Benefits Claim as a “Construction Materials Contractor” too. ¶37 Despite these matters, I can understand why the applicant has taken the view his employer was Main Roads. ¶38 From the evidence I have set out in the preceding paragraph 20, the applicant took his daily instructions and direction from Main Roads, he worked in a Main Roads workplace and performed work for Main Roads, continuously, for close to four and a half years, having minimal contact with Labsav’s director, Ian Leary. ¶39 However, whilst the applicant may have been supervised by, taken his direction from and performed work for Main Roads, it did not mean Main Roads became the employer. ¶40 The applicant’s relationship with Main Roads was consistent with that of a labour hire arrangement or a contract to provide labour, whereby Main Roads utilised the labour the applicant provided by engaging Labsav, in respect of which Labsav paid the applicant as it’s employee. ¶41 Labour hire arrangements whereby a principal (in this case Main Roads) engages a separate contractor, that in turn provides its employees to perform duties for the principal, albeit under the supervision, direction and control of the principal, are not unusual and have become accepted practice Fair Work Ombudsman v Ramsey Food Processing Pty Ltd 198 FCR 174 at [61]. ¶42 Having concluded the applicant was not employed by Main Roads, I am unable to and make no findings on the merits of the applicant’s claims. This is because the Commission lacks the jurisdiction to hear and determine those matters. Conclusion ¶43 Accordingly for the reasons set out in the preceding paragraphs, the applications are dismissed for want of jurisdiction.