Industrial Relations Commission of New South Wales CITATION: Druett and Coles Myer and Others [2006] NSWIRComm 62 APPLICANT (RESPONDENT TO NOTICE OF MOTION) PARTIES: Garry Keith Druett RESPONDENT (APPLICANT TO NOTICE OF MOTION) Coles Myer Logistics Pty Ltd FILE NUMBER(S): IRC 4010 of 2005 CORAM: Sams DP Termination of employment - unfair dismissal - notice of motion - commercial arrangement between labour hire company and host employer - applicant sent to other employers - labour hire company accepts the applicant is employed by it as a casual employee - uncontested evidence - applicant employed through labour hire company - costs application. CATCHWORDS: Held; applicant continues to have ongoing employment through labour hire company - respondent not the applicant's employer - notice of motion granted - application for costs refused - application out of time - significant jurisdictional hurdles - substantive matter to be listed for directions and conciliation. LEGISLATION CITED: Industrial Relations Act 1996 Bankstown City Council v Paris (1999) 93 IR 209 CASES CITED: Four Sons Pty Limited v Sakchai Limsiripothong (No 2) (2000) 100 IR 400 Dee Donovan and Tanya Sullivan t/as Blaze On Stage Pty Ltd [2005] NSWIRComm 362 HEARING DATES: 14/02/2006 DATE OF JUDGMENT: 03/03/2006 APPLICANT (RESPONDENT TO NOTICE OF MOTION) Mr Garry Keith Druett, unrepresented LEGAL REPRESENTATIVES: RESPONDENT (APPLICANT TO NOTICE OF MOTION) Mr T Anderson Senior State Human Resources Advisor Coles Myer Logistics Pty Ltd JUDGMENT: - 6 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS, DP 3 March 2006 Matter No IRC05/4010 Garry Keith Druett and Coles Myer and Others Application by Garry Keith Druett re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION ON NOTICE OF MOTION [2006] NSWIRComm 62 1 This decision deals with a notice of motion filed by Coles Myer Logistics ('the applicant') on the 18 August 2005, in which the applicant seeks to be removed as a respondent to matter IRC 4010 of 2005; an unfair dismissal application lodged by Mr Garry Keith Druett ('the respondent') pursuant to s84 of the Industrial Relations Act 1996 ('the Act'). 2 The notice of motion was listed for hearing on 14 February 2006. It will be evident that there were significant delays in processing of the notice of motion. This was due to an expectation that the substantive proceedings would be resolved, primarily (as will become apparent later) as Mr Druett continues to have ongoing employment through a labour hire company, Forstaff Australia Pty Ltd ('Forstaff'), to whom the applicant to this notice of motion had a contractual arrangement. Case for the applicant 3 Mr Anderson for the applicant, submitted that the company, Coles Myer Logistics had never employed the respondent and therefore could not be a respondent to his unfair dismissal proceedings. 4 Mr Anderson relied on the affidavit evidence of Vic Simpson, Centre Manager of the applicant's Huntingwood Distribution Centre. Mr Simpson deposed that Coles Myer Logistics had a commercial agreement with Forstaff to provide personnel to work at its Huntingwood site. Forstaff provided the personnel and invoiced the applicant on a weekly basis for the work performed. 5 Mr Simpson further deposed that Mr Druett worked for the applicant from October 2003 to December 2004. During this period (although Mr Druett could not recall it) Mr Druett worked a week for Linfox in July 2004 and at two different sites of the applicant. Mr Simpson said he had no knowledge of the circumstances surrounding why Mr Druett was not offered permanent work for Coles Logistics. 6 Mr Thomas Rowe, a solicitor employed by Chandler Macleod Ltd, the parent company of Forstaff, gave evidence confirming the arrangements with Coles Myer Logistics. He deposed that Mr Druett was not an employee of the applicant, but a casual employee of Forstaff. The evidence disclosed that Mr Druett completed another assignment with John Danks and Sons on 7 July 2005 and declined further work in August 2005. Moreover, Mr Druett continues to be employed by Forstaff and has been working at the Smith's site since September 2005. Mr Druett confirmed this to be the case and said he had worked most days since that time. 7 Mr Rowe accepted that Forstaff was the respondent to Mr Druett's unfair dismissal claim. 8 Mr Anderson sought costs against Mr Druett. Case for the respondent 9 Mr Druett provided a short affidavit in which he contested the circumstances of his termination of services with the applicant. He believed he had been promised full-time work with the applicant, but had been denied this opportunity because of a false and misleading employee performance assessment made about him in December 2004. 10 In oral evidence Mr Druett accepted that he had been directed by Forstaff to attend the Coles Logistics Distribution Centre then to Linfox at Arndell Park and then to John Danks and Sons. Mr Druett agreed his pay slips came from Forstaff and he was paid by Forstaff. CONCLUSIONS 11 Notwithstanding Mr Druett's alleged claims of injustice and his other rather curious submissions about extraneous matters relating to his distressing family circumstances, this matter can be readily disposed of by reference to the otherwise uncontested evidence of the applicant. This evidence disclosed the following: a) The applicant had a commercial arrangement with Forstaff to provide personnel for its Huntingwood site. b) Mr Druett was employed by Forstaff and performed work for the applicant under the terms of this arrangement. c) Mr Druett was paid by Forstaff and not by the applicant. d) Mr Druett was engaged to work with another company, Linfox, during his engagement with the applicant and has worked at at least three other locations in the last two years. e) Mr Druett continues to be employed by Forstaff and on his own admission is presently engaged to work at the Smiths site and has regularly worked there since September 2005. f) Mr Druett is a casual employee of Forstaff and has not been dismissed. 12 Accordingly, there can be no doubt that the applicant did not, and has not employed the respondent. In these circumstances, the applicant's notice of motion must be granted. 13 Notwithstanding this finding, it must be said that an alleged dismissal in December 2004 would have obviously encountered some difficulties with the 21 day time limit for the filing of an unfair dismissal application, set by s85(1) of the Act. Mr Druett's application was not filed until 3 August 2005. COSTS 14 Mr Anderson tendered a letter dated 21 December 2005 sent to Mr Druett in which he referred to previous indications to the applicant that if the matter was to proceed the applicant would seek costs against him. This was the basis upon which Mr Anderson sought a costs order against Mr Druett . 15 An application for costs in unfair dismissal proceedings is governed by s181(2)(c) of the Act. This requires a two staged approach to the awarding of costs (see Bankstown City Council v Paris (1999) 93 IR 209, Four Sons Pty Limited v Sakchai Limsiripothong (No.2) (2000) 100 IR 400 and Dee Donovan and Tanya Sullivan t/as Blaze on Stage Pty Ltd [2005] NSWIRComm 362). 16 In my opinion, for a costs application to succeed in unfair dismissal proceedings, particularly at an interlocutory stage, it would require substantially more than a mere warning to an applicant that costs would be sought. 17 Moreover, in view of Mr Druett's genuine sense of injustice (although unrelated to his employment) and his desire of only ever wanting a permanent job, I am not convinced that this is a case which is either frivolous or vexatious or that Mr Druett unreasonably refused to settle the matter. 18 That being said, I would earnestly counsel Mr Druett to closely examine the claim which now presumably he will pursue against Forstaff. It seems to me that Mr Druett's only complaint is that he has not been offered a permanent job. Mr Druett has had ongoing regular work at a number of sites for over two years. In those circumstances, there must be real doubts that the Commission has jurisdiction to deal with Mr Druett's unfair dismissal claim. 19 Mr Rowe, for Forstaff, identified at least three bases upon which his company would challenge any future unfair dismissal proceedings. 1) Mr Druett has not been dismissed and continues to be employed as an employee of Forstaff. 2) Mr Druett is a casual employee. 3) Mr Druett has been engaged on various fixed term contracts which may be ended at any time. 20 Without finally determining Mr Druett's substantive claim, it must be said that these contentions may well be insurmountable hurdles for him to overcome. Nevertheless, I propose to re-list this matter and matter IRC4012/05. ORDERS 21 The Industrial Relations Commission of New South Wales orders that: 1. The notice of motion filed by Coles Myer Logistics on 18 August 2005 is granted. 2. The Coles Myer Logistics application for costs is refused. 3. This matter and matter IRC4012/05 is listed for conciliation and directions on Tuesday, 28 March 2006 at 10.30am. Peter J Sams, AM Deputy President DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.