FWC examines worker's eligibility to file claim against Australian company
The Fair Work Commission (FWC) recently dealt with a case involving a worker who filed an unfair dismissal application against an employer.
The worker, who was engaged as a vendor and contractor employee for the employer through an outsourcing company in the Philippines, claimed that the employer had unfairly dismissed him, resulting in financial instability for him and his family.
However, the employer objected to the application, stating that the worker was not a direct employee but a consultant employed by another company.
This case raises important questions about the eligibility of workers to make unfair dismissal claims against companies that are not their direct employers.
The FWC's decision in this matter sheds light on the complexities of employment relationships in today's modern workforce, where outsourcing and contracting arrangements are becoming increasingly common.
Background of the case
The worker filed an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act) on 14 April 2024. In his application, he stated that he was accused of gross misconduct and non-performance of his duties, and that the decision to dismiss him was ordered by the Australian company to his direct employer in the Philippines.
The worker also alleged that the employer had violated existing labour codes in the Philippines by allowing him to work more than 8 hours per shift without compensation.
He claimed that this resulted in his non-performance of duties and responsibilities, and later affected his attitude towards the employer's management.
Furthermore, the worker raised concerns about the employer's internal management structure, stating that there was a direct and related affiliation from manager to supervisor, which resulted in biased decisions and retaliated power against him as a co-employee. He attempted to raise this concern to the employer's director but was not given the opportunity.
In his application, the worker stated:
"I'm a vendor and contractor employee for Mimecast Australia, under Outsourced PH, a outsourcing company in Philippines. I was accused of gross misconduct and non-performance to my duty. The decision to dismissed me as an Employee was directed by Mimecast AU to my employer. I was not treated fairly under any circumstances."
Jurisdictional issue raised by the employer
The employer objected to the unfair dismissal application, stating that the worker was not a direct employee but a consultant employed by another company. On 14 May 2024, the FWC sent email correspondence to the worker regarding this jurisdictional issue.
The worker responded on the same day, agreeing that he was not directly employed by the employer. However, he also indicated that he believed he was eligible to make an unfair dismissal application against the employer because he had previously agreed to follow the employer's internal policies.
The worker stated:
"It is true that I am not directly employed by Mimecast and I'm employed directly by Outsourced. However, with their governing policies for equal rights for employer-employee relations, jurisdiction over my claim - Unfair Dismissal is still covered through their policies."
FWC’s consideration
On 16 May 2024, the FWC sent further correspondence to the worker, explaining that if he was not a direct employee of the employer, then it was not possible for the employer to dismiss him.
The FWC also advised the worker that his application may be dismissed under ss.587(1)(a) or 587(1)(c) of the Act on the basis that the application was not properly made or had no reasonable prospects of success.
The worker was invited to discontinue his application or provide evidence and submissions on why his application should not be dismissed. However, the worker did not respond to this correspondence.
The FWC noted that there had been no hearing in relation to the threshold question of whether the worker was a direct employee of the employer.
The FWC said that the deficiency in the worker's claim was apparent from the application itself and the correspondence on 14 May 2024, in which the worker agreed that he was not an employee. There did not appear to be any disputed facts that were relevant to the threshold question.
Regarding the worker's application, the FWC said:
"[The worker] is aggrieved about the fairness of his dismissal. However, the fairness or unfairness of the dismissal is not relevant to whether he was a direct employee of Mimecast. The Commission cannot consider the fairness of [the worker's] dismissal until it is satisfied that he is eligible to make an unfair dismissal claim."
The FWC further noted that the information provided by the worker on his application form and later correspondence strongly indicated that he was not eligible to make an unfair dismissal application.
The FWC said:
"For these reasons, I am satisfied that [the worker's] claim has no reasonable prospect of success within the meaning of s.587(1)(c), and that it is appropriate in the circumstances to dismiss his application on the Commission's own initiative by the facility available in s.587(3)(a)."
This decision highlights the importance of understanding the nature of employment relationships and the eligibility criteria for making unfair dismissal claims. It also demonstrates the FWC's role in ensuring that applications are made in accordance with the Fair Work Act and have reasonable prospects of success before proceeding to a hearing.
