Dismissed by recruitment agency or its client?

The Fair Work Commission (FWC) recently dealt with a general protections dispute where a worker claimed his employment had been terminated unfairly.

The case centred on whether the worker was actually dismissed - a crucial first step in determining if he could proceed with his general protections claim.

The dispute raised important questions about employment relationships and dismissal rights, particularly when multiple companies are involved in a worker's employment arrangement.

Is it direct employment?

The worker started working for a recruitment agency on 16 April 2024 and was assigned to work at a company's premises. The arrangement continued until July 2024, when the recruitment agency informed him his services were no longer needed.

The exact end date became a point of dispute - the worker said he was told on 23 July and worked his last day on 24 July 2024, while the recruitment agency maintained his final day was 26 July 2024.

After his employment ended, the worker filed applications against both the recruitment agency and the company on 13 August 2024.

The company successfully argued they had never directly employed him, which the worker acknowledged, leading to their removal from the case.

Alleged casual employment

The recruitment agency's defence focused on the worker's casual employment status. They argued that casual employment could end at any time by its nature. However, the Commission rejected this reasoning, stating:

"...being a casual employee, [the worker's] employment could be finished up at any time. This objection is misconceived as a basis for a jurisdictional objection to the continuation of a general protections application, as it is well settled that casual employees have access to the Fair Work Act's general protections provisions, provided they have been dismissed, as defined."

The Commission explained  that under the Fair Work Act, the key factor in determining dismissal is whether the employer initiated the termination without the worker's agreement. They referenced established case law which states:

"[A] termination will be at the initiative of [the employer] where the act of [the employer] results directly or consequentially in the termination of employment – that is had [the employer] not taken the action, [the worker] would have remained in employment; and the employment is not voluntarily left by [the worker]."

Recruitment agency ends employment

The evidence revealed that the recruitment agency had ended the employment relationship. The Commission observed:

"The evidence before me is that [the employer] brought about the end of the employment relationship when it informed [the worker] that his services were no longer required."

They further clarified:

"There is no evidence before me that would suggest that [the worker] was subject to a fixed term contract or one which would otherwise terminate simply because of a particular circumstance or an affliction of time. Instead, the ending of the working relationship was when [the employer] decided to conclude it."

The Commission determined that a dismissal had occurred within the meaning of the Fair Work Act. Following this decision, the parties participated in a conciliation conference, which proved unsuccessful in resolving the dispute.

As a result, the Commission issued a certificate under section 368(3)(a) of the Act, allowing the worker to pursue further legal action if he chose to do so.

The case serves as a reminder that casual employment status does not prevent workers from accessing protections under the Fair Work Act when their employment is terminated at their employer's initiative.