[2015] FWC 4970
|
FAIR WORK COMMISSION
|
DECISION
|
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Kirsten Dale
v
Hatch Pty Ltd T/A Hatch
(U2014/16010)
v
Hatch Pty Ltd T/A Hatch
(U2014/16010)
DEPUTY PRESIDENT
ASBURY
|
BRISBANE, 12 OCTOBER 2015
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Application for relief from unfair dismissal.
1. BACKGROUND
[1] Ms Kirsten Dale applies under
s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy with respect to the termination of
her employment by Hatch Pty Ltd t/a Hatch (Hatch). Hatch is a consultancy
business that provides engineering, procurement and construction management
services to its clients in various industries including mining. Hatch has a
contract with Anglo American Metallurgical Coal (AAMC) to provide services in
relation to AAMC’s Grosvenor Project. As part of that contract Hatch employs
persons to work with AAMC employees in an integrated team, to undertake
specific tasks. Ms Dale was employed by Hatch on the Grosvenor Project in the
position of Site and Facilities Administration Lead from 3 September 2012 until
her employment ended on 10 December 2014.
[2] Hatch objects to Ms Dale’s
application asserting that she is excluded from making an unfair dismissal
application on the basis that Ms Dale was employed under a contract of
employment to perform a specified task on the Grosvenor Project. Hatch contends
that Ms Dale’s employment ended, in accordance with the terms of her contract,
on completion of that task, because AAMC determined that it no longer required
the task Ms Dale was employed to perform to be performed by an employee of
Hatch.
[3] Ms Dale asserts that she was
unfairly dismissed because while her role may have been no longer required,
there were other roles she could have performed. Ms Dale also asserts that the
real reason for her dismissal was that she made a complaint about certain
conduct on the part of the AAMC Site Manager. In final submissions, it was also
asserted that – as provided in s. 386(3) of the Act – the substantial purpose
of Ms Dale’s employment under a contract for a specified task, was to avoid
Hatch’s obligations under Part 3-2.
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