Employer argues it suffered a seasonal downturn, dismissal unrelated to pregnancy
The Fair Work Commission (FWC) recently dealt with a case that puts the spotlight on the rights of casual workers in labour hire arrangements.
The matter involved a pregnant worker who claimed she was dismissed from her job shortly after disclosing her pregnancy.
This case raises important questions about what constitutes a dismissal for casual employees and the protections available to them under the Fair Work Act 2009.
Termination due to pregnancy?
The worker argued that the sudden end of her assignment was not due to a lack of work as claimed by her employer, but was instead linked to her pregnancy.
The case centred around a worker employed as a casual forklift driver through a labour hire company, Innovative Business Group Pty Ltd (IBG).
She had been working at Vella Transport Administration Pty Ltd (Vellex) from 17 November 2023 until 31 May 2024, a period of about six months.
On 21 May 2024, IBG informed Vellex that the worker was pregnant. Just ten days later, on 31 May 2024, the worker received a text message from IBG stating that there was no more work available for her at Vellex. The message read:
"Hi. [The manager] has just called me to advise that [Vellex] are very quiet and due to this he needs to put some people off until they pick up again. So unfortunately there is no work at [Vellex] until they pick up. It usually picks up again in July / August. I will let you know when they need you again."
Feeling that her pregnancy was the real reason behind this sudden lack of work, the worker filed a general protections application with the FWC on 5 June 2024. She argued that her dismissal was in contravention of the general protections provisions of the Fair Work Act.
Employer's defence: Seasonal downturn
IBG maintained that the worker's pregnancy had nothing to do with the decision to end her assignment. They argued that it was simply a result of a seasonal downturn in business, which is common in their industry around the end of the financial year.
To support their case, IBG pointed out that other casual workers, who were not pregnant, were also put on standby during this period. In a text message exchange with the worker, IBG's representative stated:
"No it is quiet and you know that. [Name redacted] and [Name redacted] aren't pregnant and they have been put on standby as well."
They emphasised that this was a normal occurrence and that they hoped to bring workers back once business picked up again:
"This is normal with [Vellex] every year. It is very quiet in June. I will let you know as soon as they pick up again."
Is it dismissal?
A key question in this case was whether the worker had actually been dismissed. Under the Fair Work Act, a person can only make a general protections application if they have been "dismissed".
This raised an important legal point about the nature of casual employment in labour hire arrangements.
The FWC had to determine whether ending a casual worker's assignment at a particular workplace constituted a dismissal from their employment with the labour hire company. This distinction is crucial, as it affects the worker's ability to access certain protections under the law.
Terminated at the employer’s initiative
After considering the evidence, the FWC found that the worker had indeed been dismissed. The Commission reasoned:
"On the available materials, the end of [the worker's] assignment with [Vellex] on 31 May 2024 brought her casual employment with [IBG] to an end. Although [the worker] remained registered on the books of [IBG] as a potential candidate for future employment, she was no longer an employee of [IBG]."
This interpretation suggests that even casual employees in labour hire arrangements can be considered "dismissed" when their assignment ends, potentially opening the door for them to access certain protections under the Fair Work Act.
The Commission further explained its reasoning:
"I find that [the worker's] employment was terminated at the initiative of [IBG] on 31 May 2024 in response to instructions given to [IBG] by [Vellex] that it needed to cut staff, including [the worker], on 30 May 2024."
This decision emphasises the need for employers, particularly those in labour hire arrangements, to be cautious when ending assignments for casual workers. Even if a worker is employed on a casual basis, the termination of their assignment could potentially be considered a dismissal, opening the door to unfair dismissal or general protections claims.
The worker's case will proceed to the next stage, where the substantive issues of her claim will be examined. As the Commission concluded:
"The jurisdictional objection is dismissed and the matter will now be listed for conference."
