FWC explores dismissal claims in labour hire arrangements
The Fair Work Commission (FWC) recently dealt with a general protections application where a worker claimed his employment ended after he raised questions about his pay rates.
Under workplace laws, the worker sought a general protections remedy, arguing that the labour hire company had dismissed him for questioning his rates of pay. The employer disputed this claim, maintaining that their employment relationship remained active.
The case required the Commission to determine whether ending a worker's client assignment constituted a dismissal under Australian workplace laws, a prerequisite for the Commission to exercise its powers in general protections matters.
On September 23, 2024, the worker filed his application with the Fair Work Commission. The Commission set directions for both parties to file and serve evidence and submissions before the jurisdictional hearing, sending these directions to their provided email addresses.
Despite these directions, the worker did not submit any material in response. When the hearing took place on December 6, 2024, he did not appear, and multiple attempts by the Commission to reach him by telephone and email were unsuccessful.
The Commission proceeded with the hearing in the worker's absence, considering the evidence presented by the employer.
The labour hire company employed the worker under a contract signed on July 25, 2024. This contract established specific terms about assignments with client companies.
The decision quoted key contractual provisions: "[The employer] could change or terminate an assignment without reason... [the worker] had no right to ongoing employment, or to continued engagement on a particular assignment... the termination of an assignment did not constitute the termination of [the worker's] employment with [the employer]."
The worker started a warehouse assignment on July 29, 2024. On September 14, the client emailed the employer stating the worker had been "inconsistent with performance and unreliable" and requested his removal.
For the Commission to handle the general protections application, it needed to establish whether a dismissal had occurred. The decision outlined two ways dismissal could happen: termination on the employer's initiative or forced resignation.
The Commission noted: "In some cases, the employment relationship between a labour hire company and an employee may continue during periods where the employee is not placed at a client company. This will depend on the contractual arrangements between the parties and the factual matrix in which they operate."
Upon receiving the client's email, an employer representative informed the worker about the assignment's end and indicated the office would contact him about other potential roles. His status remained "active" in the employer's system.
The Commission found the employment relationship continued despite the assignment ending. As stated in the decision:
"The ongoing nature of the relationship was evidenced by [the worker] being told on 14 September 2024 that [the employer] would explore other opportunities for him and him remaining 'active' on [the employer's] system."
The decision further explained: "The fact that [the employer] has been unable to secure other work for [the worker] is reflective both of the nature of a labour hire business and his casual status. It does not itself lead to the conclusion that the employment relationship has come to an end."
Having found no dismissal occurred, the Commission determined it lacked jurisdiction to proceed with the general protections application and dismissed the proceedings.
