INSIGHT

A fait accompli: employee unfairly dismissed by labour-hire company

By Simon Dewberry
Employment & Safety Industrials

In brief

The Fair Work Commission has criticised a labour-hire company for dismissing a casual employee at the direction of a host company, without asking why. Senior Associate Stephanie Burn and Associate Emma Veljkovic report.

How does it affect you?

  • If requested or directed by a host company or client to remove an employee from a site or assignment, employers should make enquiries about the reason before taking any action.
  • If a dismissal is unfair, the Commission is willing to order reinstatement even where it might result in the employee ultimately being dismissed for another reason.

Background

Ms Star, a casual employee of labour-hire company WorkPac Pty Ltd, had worked a regular full-time roster for four years as a machinery operator at BHP Billiton Mitsubishi Alliance's Goonyella Mine. Without giving a reason, BMA told WorkPac it no longer required Ms Star's services.

Without asking BMA why it no longer required Ms Star, WorkPac told Ms Star that her position was 'demobilised' and that her casual assignment had ended.

Ms Star claimed she had been unfairly dismissed and sought reinstatement.

Decision

As to whether Ms Star was dismissed, WorkPac said that an ongoing employment relationship existed after the assignment at the Goonyella Mine ended, and that Ms Star ended the employment relationship by expressing disinterest in other assignments. The Commission disagreed with this, and decided that Ms Star was employed 'on an assignment by assignment basis' and that her employment ended at WorkPac's initiative when her assignment ended.

The Commission rejected WorkPac's argument that the reason for her dismissal was its inability to find her another role. The Commission decided that BMA had probably directed Ms Star's removal from the site because of her conduct, which was not a valid reason for her dismissal by WorkPac. WorkPac immediately dismissed Ms Star, before trying to find her another role and before making enquiries with BMA.

In deciding that the dismissal was unfair, the Commission emphasised that labour-hire companies cannot simply rely on directions from host companies when dismissing employees. It was no defence to Ms Star's claim that WorkPac was complying with BMA's direction. Further, WorkPac did not notify Ms Star of the reason for her dismissal, nor did it give her an opportunity to respond.

Interestingly, despite acknowledging that reinstating Ms Star might result in her further dismissal if BMA did not allow her back on site or that she might be forced to accept an alternative role, the Commission was willing to reinstate Ms Star at the Goonyella Mine.

Reference: Ms Kim Star v WorkPac Pty Ltd T/A WorkPac Group [2018] FWC 4991