Alice Anna Hennessy v Chevron Australia Pty Ltd [2023] FWC 3293

1 Fair Work Act 2009 s.365—General protections Alice Anna Hennessy v Chevron Australia Pty Ltd (C2023/6167) COMMISSIONER LIM PERTH, 29 DECEMBER 2023 Application to deal with contraventions involving dismissal – jurisdictional objection – not dismissed – application dismissed Introduction [1] Mrs Alice Anna Hennessy has applied pursuant to s 365 of the Fair Work Act 2009 (Cth) (Act), alleging that Chevron Australia Pty Ltd (Chevron or the Respondent) contravened Part 3-1 of the Act by dismissing her from her employment. [2] Mrs Hennessy was engaged as an administration assistant in May 2023. Mrs Hennessy was assigned to Chevron’s main office at Barrow Island. [3] On 1 August 2023, Mrs Hennessy suffered a workplace injury. On 7 September 2023, Mrs Hennessy’s assignment with Chevron concluded. Ms Hennessy alleges that Chevron dismissed her from her employment due to her injury. [4] Chevron has raised a jurisdictional objection on the basis that Mrs Hennessy was not dismissed within the meaning of s 386 of the Act, because she was not an employee of Chevron, she was an employee of NES Fircroft. NES Fircroft is a provider of labour hire to Chevron. [5] It is uncontroversial that for the matter to proceed, Mrs Hennessy needs to have been dismissed. In Coles Supply Chain Pty Ltd v Milford1 (Coles v Milford), the Full Court of the Federal Court held that where a respondent submits that the applicant to a section 365 application was not dismissed, as is the case here, the FWC must determine that issue before exercising its powers under s 368 of the Act.2 [6] Accordingly, the matter was allocated to my Chambers. Directions were issued to the parties for the filing of material in relation to the jurisdictional objection. [7] Prior to the hearing of the matter my Chambers constructed a paginated court book consisting of submissions and evidence of the parties. References to evidence are by way of the relevant page number in the court book. [2023] FWC 3293 DECISION -- 1 of 10 -- [2023] FWC 3293 2 [8] I conducted an in person hearing on 14 December 2023. At the hearing, Mrs Hennessy represented herself. The Respondent was granted permission to be represented by Ms Dominique Hartfield of Jackson McDonald. Mrs Hennessy gave evidence in support of her case. Chevron called Mr Vinesh Rai (Program Manager, Allegis Global Solutions Ptd Ltd); Ms Sasha Harvey (Human Resources Business Partner, Chevron); Ms Patricia Rawlinson (Account Manager, NES Fircroft); and Ms Kayla Woodcock (Occupational Health and Safety Coordinator, NES Fircroft). [9] Having considered the evidence and submissions of the parties, I have found that Ms Hennessy was not an employee of Chevron. Accordingly, she cannot have been dismissed within the meaning of s 368(1) of the Act. Mrs Hennessy’s application cannot proceed. [10] My detailed reasons for my decision follow. Evidence Chevron’s operations generally [11] Chevron called Mr Rai to give evidence regarding how Chevron manages its contingent labour-hire workforce. [12] Mr Rai is a Program Manager for Allegis Global Solutions Pty Ltd (Allegis). Allegis manages the contingent labour management program for Chevron to hire temporary workers, to fill any capability which Chevron does not have or cannot fulfil with its own direct employees.3 [13] Mr Rai’s evidence relevantly included the following: (a) In his role he is the conduit between Chevron and the labour hire companies it contracts with.4 (b) Chevron typically sources its contingent workforce through three labour hire companies, which undertake general recruitment of administration staff through to senior engineers. NES Fircroft is one of these labour hire companies.5 (c) When Chevron requires a worker, they liaise with Mr Rai. Mr Rai then liaises with the labour hire companies. Where Chevron requires one position to be filled, up to three candidates are usually presented by the relevant labour hire company for consideration. Mr Rai then presents the candidates to the line manager for the position. The line manager will decide on a shortlist, and an interview is then arranged with the manager to determine who is best suited to the temporary role.6 (d) It is common practice in the oil and gas industry for the host company to interview the worker to ensure the worker is suitable for the position.7 (e) Mrs Hennessy was a candidate presented by NES Fircroft for an assignment for an Administration Assistant at Chevron’s Barrow Island main office.8 -- 2 of 10 -- [2023] FWC 3293 3 (f) NES Fircroft was paid a service fee for the provision of Mrs Hennessy’s services.9 [14] Mrs Hennessy did not challenge Mr Rai’s evidence. I accept Mr Rai’s evidence regarding his role and how Chevron manages its contingent labour-hire workforce. [15] Chevron also called Ms Harvey to give evidence regarding Chevron’s business operations. Ms Harvey’s evidence relevantly included the following: (a) In her human resources capacity, she has checked with both Chevron’s human resources and payroll departments and can confirm that:10 (i) Mrs Hennessy has never been entered into Chevron’s employee records database as a Chevron employee; (ii) Chevron has no record of Mrs Hennessy ever having been issued an employment contract; (iii) Chevron has no record of a payslip ever being issued to Mrs Hennesy; and (iv) Chevron’s employee database records Mrs Henessy as a Contingent Worker. (b) It is not unusual for Chevron to interview labour hire candidates to ensure that the best candidate is selected.11 (c) It is common practice for Chevron to issue Chevron branded uniform to labour hire employees on site. It is also common practice to issue labour hire employees a Chevron email address and for labour hire employees working in administration to be issued a credit card, due to the duties of those roles. Ms Harvey’s evidence is that Mrs Hennessy was not issued a Chevron purchasing card.12 [16] Mrs Hennessy did not challenge Ms Harvey’s evidence. I accept Ms Harvey’s evidence. Events leading up to Mrs Hennessy’s application [17] On 9 May 2023, NES Fircroft contacted Mrs Hennessy to offer her a role as an Administration Assistant based at Chevron’s Barrow Island office. Mrs Hennessy attended an interview with Chevron staff on 16 May 2023. Mrs Hennessy was subsequently offered the role. [18] On 25 May 2023, Mrs Hennessy signed an employment contract with NES Fircroft. Mrs Hennessy’s employment contract relevantly provides:13 CONTRACT OFFER LETTER NES Fircroft is pleased to offer you an Assignment Contract in accordance with the following Assignment details. This contract Offer Letter should be read in conjunction with the Terms (On-Hire Employment Contract). -- 3 of 10 -- [2023] FWC 3293 4 Parties Employer (or Company) means NES Fircroft Australia Pty Ltd ABN 58 100 091 245 trading as NES Fircroft Employee (or Personnel) means Alice Hennessy Assignment Details Assignment Position Title Your position title on this assignment is Administration Assistant. The Employee is covered by the Hydrocarbons Industry (Upstream) award. This applies as a matter of law and is not incorporated as part of the Assignment Contract. Position Description You will be advised of your position description and duties by the Client. Client Our Client, your host organisation on this assignment is Chevron Australia Pty Ltd. Reports You will be advised verbally of the individual you should report to upon commencement of the assignment. Assignment Place of Work The principal place of work for this assignment shall be Barrow Island Main Office. Point of Origin means Perth. Commencement Date shall be the date that the Client confirms you should first report for work on this assignment which is anticipated to be 30 May 2023. Estimated Completion Date shall be 29 May 2024 or such other date as may be agreed from time to time between the parties as the date or completion of the Assignment. There is no guarantee that the Assignment shall last until this date. [19] Mrs Hennessy’s first day at the Chevron Barrow Island office was 30 May 2023.14 [20] On 1 August 2023, Mrs Hennessy sustained an injury to her head, neck, and spine when she struck the top of her head on the internal roll bar in a van while at work. This injury has substantially impacted Mrs Hennessy’s life. She has subsequently been diagnosed with post- concussion syndrome and regularly suffers from headaches, nausea and dizziness.15 [21] On 6 September 2023, Ms Patricia Rawlinson contacted Ms Kayla Woodcock to inform her that upon instruction from Chevron, Mrs Hennessy’s assignment had come to an early close.16 -- 4 of 10 -- [2023] FWC 3293 5 [22] During cross-examination, Ms Rawlinson confirmed that Chevron did not inform her to terminate Mrs Hennessy’s employment contract. Further, that Chevron had advised that Mrs Hennessy’s assignment would no longer be going ahead as Chevron needed someone who was fit to perform the role.17 [23] That same day, Ms Woodcock called Mrs Hennessy. Ms Woodcock’s evidence of that phone call is that: • She advised Mrs Hennesy that unfortunately her assignment had come to an early close due to operational needs. She further confirmed that Mrs Hennessy would fall back into the care of NES Fircroft as her employer, and NES Fircroft would continue to work with her through the injury management process. • Mrs Hennessy was upset and expressed her belief that Chevron was her employer and that Chevron had dismissed her whilst injured. • She advised Mrs Hennesy that she is an employee of NES Fircroft, not Chevron. • During the call, Mrs Hennessy agreed that there would be an operational need for someone to be in the role of administration assistant and advised that working remotely would no longer be suitable for her as she needed to be home for her children. • They discussed different ideas for her to work in the Perth CBD once Mrs Hennessy had capacity to do so. • Before the call ended, she again confirmed to Mrs Hennessy that NES Fircroft would be looking after her. [24] Mrs Hennessy’s evidence of the phone call is that Ms Woodcock called her to inform her that her contract was finishing. Mrs Hennessy’s recollection is that Ms Woodcock sounded shocked and upset for her, and Ms Woodcock stated that she had been informed, “that the position had to continue on, as they couldn’t keep covering for me” whilst she was injured.18 [25] During cross-examination, it was put to Mrs Hennessy that during this phone call Ms Woodcock explained that NES Fircroft is her employer, not Chevron. Further, that Ms Woodcock did not tell Mrs Hennessy that she had been dismissed. Mrs Hennessy’s response to both lines of questioning was that she did not recall.19 [26] On 7 September 2023, Mrs Hennessy received a letter from NES Fircroft which stated: Dear Alice Completion of Assignment as an Administration Assistant We refer to the above and confirm that your Assignment with Chevron Australia Pty Ltd has completed earlier than anticipated and this has been discussed with you by Kayla Woodcock. The last formal day of your Assignment including Notice Period is the 13 September 2023 but we understand that you are not able to attend work during that period. -- 5 of 10 -- [2023] FWC 3293 6 As your employer NES Fircroft would like to look for further assignments for you once you are ready to work and we hope to assist you again in the future. Kayla will also be in touch with you as required regarding your workers compensation matter. Please give her or myself a call if we can support you any further. Yours sincerely Patsy Rawlinson Account Manager NES Fircroft [27] Mrs Hennessy made her application pursuant to s 365 of the Act on 4 October 2023. [28] As of the date of the hearing, Mrs Hennessy is still unfit to return to work due to her injury. Submissions Mrs Hennessy [29] Mrs Hennessy contends that she was an employee of Chevron, and that Chevron terminated her employment. In support of this, Mrs Hennessy submits the following: (a) Chevron direct employees interviewed her for the position of Administration Assistant. (b) She was required to wear uniform with the Chevron logo on it. Mrs Hennessy submits that she is an experienced worker in the fly-in-fly-out mining industry and has previously worked on sites through sub-contracting companies Sodexo, Hays and Pindari. In those previous roles, she wore a uniform with the sub-contractor’s logo. (c) She was given a Chevron email address – specifically, [email protected] (d) She was approved for a Chevron Amex credit card. [30] Mrs Hennessy contends that she understands the difference between a labour hire employer and a principal, or host, employer. Mrs Hennessy maintains that Chevron was her direct employer.20 Chevron [31] Chevron submits that where parties have comprehensively committed the terms of their relationship to a written contract, the characterisation of their relationship is determined by reference to the rights and obligations of the parties under the contract; and not by reference to questions of fairness or the manner in which subsequent conduct and performance might uncover a ‘reality’.21 -- 6 of 10 -- [2023] FWC 3293 7 [32] Chevron contends that in this matter what is relevant is whether there was a contract of employment between Mrs Hennessy and Chevron. Chevron points to the following: (a) Mrs Hennessy entered into a contact of employment with NES Fircroft on 25 May 2023. (b) Chevron has never entered into an employment contract with Mrs Hennessy. (c) Mrs Hennessy’s engagement to provide services to Chevron was through a common employee services model. NES Fircroft is contracted to provide labour to Chevron. NES Fircroft employed Mrs Hennessy to this effect. (d) NES Fircroft paid Mrs Hennessy’s wages and deducts income taxation. [33] Chevron submits that the employment contract between Mrs Hennessy and NES Fircroft is a comprehensive commitment of the terms of the employment relationship to a written contract. Mrs Hennessy has not disputed the validity of this contract. [34] With regards to the arguments Mrs Hennessy has raised in support of her contention that Chevron is her employer, Chevron submits the following: (a) Chevron uniform and email: It is common practice for Chevron to issue its on-site contingent workers with Chevron branded uniform and an email address. The email address that is issued to its contingent workers have different access compared to Chevron direct employees. Further, email addresses for continent workers have the worker’s actual employer in brackets after their name, which is visible when an email is sent to or from their email address. This can be seen with Mrs Hennessy’s email address, which showed “[email protected] [NES Fircroft]”. (b) Being interviewed by Chevron: Chevron’s personnel may interview shortlisted labour hire candidates from time to time to ensure the best candidate is selected. (c) Being provided an Amex credit card: Whilst it is common for on-hire workers in administration to be provided a credit card given the requirements of the role, Chevron’s internal records show that Mrs Hennessy was not provided with a credit card. [35] Chevron submits that Mrs Hennessy’s evidence regarding her injuries is not relevant to the issue to be determined in this matter. Legislation [36] The Application was made pursuant to s 365 of the Act, which provides: 365 Application for the FWC to deal with a dismissal dispute If: (a) a person has been dismissed; and (b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part; -- 7 of 10 -- [2023] FWC 3293 8 the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute. [37] ‘Dismissed’ is defined in s 12 of the Act, which refers to s 386. Section 386 of the Act relevantly provides: 386 Meaning of Dismissed (1) A person has been dismissed if: (a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or (b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer. Consideration [38] I appreciate that Mrs Hennessy has been deeply affected by her injury and sympathise with the evidence she gave regarding how the injury has negatively impacted her health and life. Mrs Hennessy is aggrieved by how her injury has been managed and made submissions regarding the lack of return-to-work program and contact from NES Fircroft. Whilst I sympathise with the impact Mrs Hennessy’s injury has had on her life, the management of her injury is not relevant to the question of whether Chevron dismissed her. [39] I understand that Mrs Hennessy’s argument is that she was dismissed within the definition of s 386(1)(a). Dismissal of a person on an employer’s initiative requires that person to have been employed by that employer, under a contract of employment between that person and the employer. [40] It is clear from the evidence that at all relevant times Mrs Hennessy was employed by NES Fircroft, not Chevron, under a labour hire arrangement. I refer to Mrs Hennessy’s employment contract with NES Fircroft, which clearly sets out the employment relationship between herself and NES Fircroft. I accept Chevron’s unchallenged evidence is that there was no employment contract between Chevron and Mrs Hennessy. The ABN on Mrs Hennessy’s payslips is NES Fircroft and Mrs Hennessy confirmed that NES Fircroft paid her wages.22 [41] Mrs Hennessy’s Chevron issued email identified her as a NES Fircroft employee. I accept Chevron’s evidence that it is usual practice for labour hire employees on Chevron sites to wear Chevron uniform. I also accept Chevron’s evidence that it is not uncommon for Chevron personnel to interview labour hire candidates. Though Mrs Hennessy’s experience with prior labour hire assignments may be different, what is relevant in this matter is how Chevron conducts its labour hire arrangements. -- 8 of 10 -- [2023] FWC 3293 9 [42] On the contested issue of whether Mrs Hennessy was issued a Chevron credit card, Mrs Hennessy’s evidence under cross-examination is that the credit card was waiting for her at the office for collection. However, Mrs Hennessy was injured before she could collect the credit card, so she never saw the physical card and could not attest to whether the card had her name on it or a team name.23 Regardless of whether Mrs Hennessy was issued an individual Chevron credit card, I accept Chevron’s submission that it was common practice to issue labour hire employees credit cards where their duties involved purchasing, as Mrs Hennessy’s role did. I find that whether Mrs Hennessy had an individual credit card or not has no bearing on the question of whether she was directly employed by Chevron. [43] Whilst Chevron concluded Mrs Hennessy’s assignment at Barrow Island early, this was not an act of dismissal because Chevron was not Mrs Hennessy’s employer. Conclusion [44] As Mrs Hennessy was not employed by Chevron, Chevron cannot have dismissed her. Mrs Hennessy has a genuine sense of grievance about the circumstances in which her assignment came to an end, but it was not a dismissal by Chevron within the meaning of s 386(1). [45] It follows that Mrs Hennesy’s application is not within the Commission’s jurisdiction and must be dismissed. [46] An Order24 giving effect to this decision will issue separately. COMMISSIONER Appearances: A Hennessy, applicant. D Hartfield of Jackson McDonald for the Respondent Hearing details: 2023. Perth December 14. -- 9 of 10 -- [2023] FWC 3293 10 Printed by authority of the Commonwealth Government Printer <PR769210> 1 [2022] FCAFC 152. 2 Ibid at [51]. 3 Digital Court Book, p 162 at [1] – [3]. 4 Ibid, p 162 at [4]. 5 Ibid, p 162 at [5]. 6 Ibid, p 163 at [8]. 7 Ibid. 8 Ibid, p 163 at [9]. 9 Ibid, p 163 at [11]. 10 Ibid, p 146 at [3]. 11 Ibid, p 146 at [4]. 12 Ibid, p 146 at [5]. 13 Ibid, p 152. 14 Ibid, p 72. 15 Ibid, p 27 – 28. 16 Ibid, p 144 at [6]. 17 Transcript, 14 December 2023, PN192 – PN197. 18 Digital Court Book, p 72. 19 Transcript, 14 December 2023, PN104 – PN105. 20 Ibid, PN70. 21 CFMEU v Personnel Contracting Pty Ltd [2022] HCA 1(Personnel Contracting) at [59] and [88]. 22 Transcript, 14 December 2023, PN65. 23 Ibid, PN91 – PN93. 24 PR769212. -- 10 of 10 --