Lost placement not equal to dismissal, FWC rules in labour hire case

The Fair Work Commission (FWC) recently dealt with a dispute where a labour hire worker claimed she was dismissed after receiving a message that her services were "no longer required" at the client site. Her employer, however, maintained that she remained employed despite not having an active placement.

The case brought up questions about when the end of a placement crosses the line into dismissal, and what obligations labour hire companies have to their workers between placements.

While the worker argued the lack of communication and new placements effectively ended her employment, the labour hire company pointed to her ongoing status in their system.

‘No longer required on site’

The worker started with the labour hire company in May 2024 after being referred by their client, a major retail distribution company. She had disclosed a crushed disk in her back that limited her work capacity but was approved to perform guard duties at the client's gatehouse.

Two months into her placement, on 15 July 2024, she received a message through the rostering system: "Please note cancellation of roster – Please note [host employer] have advised you are no longer required for site."

The worker did not wear the labour hire company's branded clothing while on placement, using her own hi-vis attire instead, and reported directly to the host employer's gatehouse supervisor.

Key evidence included text messages between the worker and the host employer's supervisor after receiving the roster cancellation:

"I just need to know if I still have a job," the worker wrote.

The supervisor replied: "I am bound to follow policy and procedure as a supervisor at [host employer]. I only deal with the permanents hun, you will have to discuss further with [labour hire company] as you are their employee."

Two phone conversations followed between the worker and the labour hire company manager. During these calls, according to the worker's evidence, she was told she had "engaged in inappropriate behaviour" and was "no longer required back on site."

Job placement vs. employment

The labour hire company's defence centred on a clear distinction between ending a placement and ending employment, as shown in their submission:

"[The company] submitted that [the worker] has not been dismissed and remains employed by [the company]. It maintains that a casual employee ending their placement at a worksite does not constitute the end of their employment."

The company manager said they typically placed workers in labour-intensive roles requiring lifting over 25 kilograms, often outdoors.

While they had considered the worker for other positions, her physical limitations made it difficult to place her in their usual industrial roles.

The FWC examined whether the situation met the definition of "termination at the initiative of the employer" under section 386 of the Fair Work Act. The Commission noted:

"There must be a sufficient causal connection between the conduct and the resignation such that it 'forced' the resignation."

In considering the context of labour hire arrangements, the FWC observed:

"At various times, labour hire companies are typically informed that their employees are not required to return to work at their clients' premises. This was such an occasion and after a relatively short period of time."

The Commission ultimately determined that the employment relationship continued to exist. The decision stated:

"I am satisfied that the employment relationship between [the worker] and [the employer] continues to exist and if [the employer] has suitable roles to offer to [the worker], it will continue to do so."

The FWC said that while a placement may end, this doesn't automatically terminate the employment relationship with the labour hire company. The worker's application was dismissed for lack of jurisdiction, as the Commission found no dismissal had occurred.

The case provided guidance on distinguishing between the end of a placement and the termination of employment in labour hire arrangements, particularly when workers have specific work capacity limitations.