1 Fair Work Act 2009 s.365—General protections Travis Daniel Lees v RPR Trades Pty Ltd (C2023/3603) COMMISSIONER MCKENNA SYDNEY, 17 AUGUST 2023 Application to deal with contraventions involving dismissal [1] The following is an edited version of a decision given orally today. [2] Travis Daniel Lees (“applicant”) has made an application, pursuant to s.365 of the Fair Work Act 2009 (“Act”), to deal with contraventions involving dismissal. RPR Trades Pty Ltd (“respondent”) has raised a jurisdictional objection to the application, contending there has been no dismissal. It is necessary to determine that jurisdictional objection. [3] In today’s hearing, the applicant appeared on his own behalf and the respondent was represented by Mr E Milne, General Manager, HR, Safety & Capability. Background [4] The respondent is a labour hire company. The respondent employed the applicant on or about 18 May 2022 to undertake roller operator/labourer work on a casual on-hire basis. The nature of the employment was set out in a contract of employment dated 3 May 2022, being a matter referred to by the respondent in written and oral submissions. The applicant initially was placed by the respondent with a host employer in the construction industry (“construction company”) to undertake work on a job in northern New South Wales, in the locality where the applicant resided. The works being undertaken by the construction company were in the nature of short-term project work, being works which were term-limited rather than ongoing or indefinite. Moreover, the respondent was unsuccessful in obtaining on-going work with the construction company in further works that subsequently commenced in Mullumbimby. [5] The applicant sustained a work-related injury while working with the construction company, for which workers’ compensation liability was accepted by the respondent’s insurer, EML. The applicant also suffered a further injury, for which workers’ compensation liability was again accepted. [6] As a result of the work-related injuries and the ensuing medical restrictions, the respondent placed the applicant with another host employer, being a placement to undertake [2023] FWC 1966 DECISION [2023] FWC 1966 2 suitable duties at a Salvation Army workplace. Thus, the Salvation Army was the second host employer where the applicant was placed/worked. The placement at the Salvation Army apparently proceeded on the basis that the applicant was given, or was to be given, only suitable duties, conformably with his then-prevailing medical restrictions arising from the workers’ compensation-covered injury. [7] At some point, the respondent became aware that a medical practitioner and/or WorkCover, or similar, had determined that the applicant was fit for a resumption of full pre- injury duties. Given the applicant was fit for full pre-injury duties, the respondent determined to cease the workers’ compensation-related, suitable duties-specific placement at the Salvation Army. The respondent’s advice to the applicant informing him of the withdrawal of the suitable duties at the Salvation Army was dated 2 June 2023 and relevantly read: “Based on the vocational assessment completed by Rehab Management on the 14th of April 2023, and confirmed in the vocational report dated the 19th of May 2023, we are withdrawing Suitable Duties at the Salvation Army. Your nominated treating doctor, [name of practitioner] was consulted and confirmed on the 28th of April 2023 that the role of Roller Operator is suitable for you, and you have the ability to perform the duties involved in the role. Based on the above, this is to confirm that you are not required to attend for any more shifts at the Salvation Army from today. Should you choose to still attend, this will be viewed as a voluntary basis, and no wages will be paid. We will continue to support you through your rehabilitation, and ensure that your new weekly payments are made ($123.50, if necessary, from the 5th of June 2023), to supplement your income. Please do not hesitate to contact myself of iCare if you have any questions.” [8] The applicant contends that the preceding advice constituted a dismissal. As to this correspondence, the respondent submitted “This is not a Termination of Employment. The above is notification that he is no longer required to undertake suitable duties because his WorkCover capacity has increased to pre injury duties.” [9] Moreover, the project work being undertaken by the construction company had been wrapping-up over March, April and May 2023, with, the submissions indicated, the last on-hire employee ceasing on 30 June 2023. In consequence, no placement or return to work at the construction company’s operations was available any longer. The Form F8A explained in response to the applicant’s initiating process: “The Full Time, Pre-injury hours Travis [the applicant] is referring to, are no longer available, as our Client has finished their project on that site and left.” [10] The applicant’s position, as identified, for example, in his Form F8 application form, was that: [2023] FWC 1966 3 • the respondent had “dismissed me from returning to my pre-injury full time work”; • the respondent had not offered the applicant any work at all (after the Salvation Army placement), even though it has other sites within a reasonable travelling distance from his residence; • the applicant was injured at work and attended for light duties at the Salvation Army; • the respondent had stopped paying the applicant and had not returned him to full-time hours – and, therefore, the respondent had effectively dismissed the applicant. [11] As to the foregoing, the applicant identified in his Form F8 a dismissal said to have been brought about as a result of a temporary absence due to illness or injury (c.f., s.352 of the Act). [12] The respondent’s position, as identified, for example, in its Form F8A, was that: • the respondent did not have any other work for the applicant in the area where the applicant resided (i.e., around the time of the cessation of the suitable duties-specific placement at the Salvation Army); • if the applicant was willing to relocate for other job opportunities, the respondent would consider his application; • the respondent has never advised the applicant that he has been dismissed; • the respondent has not dismissed the applicant. Consideration [13] The parties each filed and served materials pursuant to the directions, and, as noted earlier, the matter was heard (by video-link) today, 17 August 2023. Issues were canvassed in the written materials and, to a lesser extent, in the oral submissions, concerning, for example: the applicant’s work-related injury and the reinjury or aggravation of that injury; the payment and/or delayed payment of wages and/or workers’ compensation benefits; interactions with the workers’ compensation insurer; and, particularly, records of telephone communication and other forms of electronic communications as between the applicant and representatives of the respondent. The parties’ materials went to matters beyond the narrower question of jurisdictional relevance as to whether there had been a dismissal - and, hence, it is unnecessary for me to deal with them. [14] While I appreciate that the practical effect for the applicant is that he is no longer obtaining paid work in his employment with the respondent through any placement with a host employer, it is not disputed that: • the applicant’s initial placement was to undertake work with a host employer, being the construction company; [2023] FWC 1966 4 • the construction company work was time-limited project work and that project was wrapping-up at some point prior to the applicant having the medical capacity to return to full pre-injury duties; • at a time when the applicant was not fit to perform full pre-injury duties, he was given a placement at the Salvation Army to undertake workers’ compensation-related suitable duties; • after the respondent was aware that the applicant was fit for a resumption of full pre- injury duties, it ceased/withdrew the workers’ compensation-related suitable duties placement at the Salvation Army. [15] There was nothing before me to indicate that the respondent had any other host employer client work which would have constituted an alternative placement for the applicant around the time of the cessation of the workers’ compensation-related suitable duties placement at the Salvation Army. Not only does the applicant remain, as it were, “on the books” of the respondent should a suitable placement arise, the respondent relevantly informed the applicant in writing in connection with the cessation of the Salvation Army placement that it would continue to support him through his rehabilitation and ensure that his new weekly workers’ compensation-related payments were made to supplement his income. Moreover, there was nothing before me to indicate that the respondent had communicated to the applicant that the respondent had dismissed him and, the respondent’s written submissions contended, the applicant “continued to receive standard notifications (EAP Notifications) sent to all active / current employees”- a matter confirmed in the oral submissions, albeit the applicant submitted there had been only one such notification and that was received only after this application had been lodged. As to that, Mr Milne’s submissions indicated that the respondent would continue to look for a placement for the applicant. In so submitting, Mr Milne referred to the costs to the respondent involved in recruiting new employees and, against that background, the respondent’s preference for retaining employees if practicable. [16] I am not satisfied that this case involved a dismissal of the applicant by the respondent. As such, the application is dismissed on the basis of my acceptance of the respondent’s no- dismissal jurisdictional objection - without any referral for a staff conciliation or the issuing of the relevant certificate (see Lipa Pharmaceuticals Ltd v Mariam Jarouche [2023] FWCFB 101). An order will issue separately dismissing the application. COMMISSIONER [2023] FWC 1966 5 Appearances: T Lees on his own behalf E Milne for the respondent. Hearing details: 2023. August 17 Hearing by video-link. Printed by authority of the Commonwealth Government Printer <PR764992>