Worker ended employment in asking for separation certificate, says employer
The Fair Work Commission (FWC) recently dealt with a case involving a labour hire worker who claimed unfair dismissal after losing his placement at a client's worksite due to a failed drug test.
The worker argued that his employment was terminated at the initiative of the labour hire agency when they issued a separation certificate and failed to communicate about alternative placements.
This case raises important questions about the nature of dismissal in labour hire arrangements and the responsibilities of both agencies and their clients.
Consequences of testing positive for drugs
The worker had been employed by a labour hire agency since September 2022, working full-time hours with regular overtime at a quarry operated by the agency's client, Adbri.
In June 2024, Adbri offered the worker direct employment, subject to pre-employment screening. As part of this process, the worker took a drug test on June 13, 2024, which he failed due to testing positive for cannabis.
The worker said he used cannabis for medicinal purposes, though he had not told either Adbri or the labour hire agency about this.
When Adbri learned about the failed drug test, they immediately ended the worker's placement at their site. The labour hire agency was told about this decision and contacted the worker to discuss the situation.
Over the next few days, the worker talked several times with representatives of the labour hire agency. The agency explained that Adbri would not change its decision and that they would look for other placements for the worker.
A key issue in this case was the worker's request for an employment separation certificate. The labour hire agency's representative said she had clearly told the worker that asking for such a certificate would end his employment with the agency.
Despite this, on June 18, the worker sent an email asking for the certificate, stating: "Hello, i need a separation certificate so i can finalise my centrelink payments. Thanks"
Labour hire agency issues separation certificate
The labour hire agency processed the worker's request and issued the separation certificate on or about June 25, 2024.
The worker filed an unfair dismissal application on July 4, 2024, saying he had been dismissed on June 14, 2024. The labour hire agency opposed the application, arguing that there had been no dismissal.
The FWC examined the events leading up to the end of the employment relationship. It considered whether the issuing of the separation certificate or the agency's actions after the worker's placement ended amounted to a dismissal under the Fair Work Act.
The Commission noted the importance of looking at the situation objectively to determine if a dismissal had occurred:
"Determining whether, on the facts, a person has been dismissed is an objective exercise. That a person believes they have been dismissed or another believes or believed the contrary does not make it so."
Drug test case: Is it dismissal?
The FWC found that the worker had not been dismissed within the meaning of the Fair Work Act. The Commission decided that the main factor that ended the employment relationship was the worker's own request for the separation certificate.
The FWC explained:
"I find that the employment relationship ended when [the employer] issued the certificate on 25 June but that doing so was not at its initiative. The request for the certificate, when all circumstances are considered in context, was the principal contributing factor which brought the employment relationship to an end. That request was made at the initiative of [the worker]."
The Commission also said:
"This being so, the issuing of the employment separation certificate, and the statement therein that employment had ceased, was not a termination on [the employer's] initiative. It was not a dismissal, as defined."
While upholding the jurisdictional objection and dismissing the application, the FWC noted the difficult position labour hire workers can find themselves in when a placement ends. The Commission observed:
"In the case of labour hire, an employment relationship commonly continues to exist between a person and a labour hire agency once a particular paid placement has ceased. Termination of a paid placement does not necessarily mean that the employment relationship with the employing agency has ended. In those instances, there is a period of continuing employment but no work and therefore no income."
This case highlights issues surrounding labour hire arrangements and the ending of employment. It shows the need for clear communication between all parties involved and points out potential policy issues regarding access to unemployment benefits for labour hire workers.
