FWC decision clarifies dismissal boundaries in labour-hire arrangements
The Fair Work Commission (FWC) recently dealt with a case involving a labour hire worker who claimed unfair dismissal after being removed from a client site following a workplace incident. The worker believed he had been unfairly dismissed when he could no longer work at his original assignment location.
The worker initially argued he was dismissed when banned from returning to the client's site, despite being offered and accepting alternative work. Later, he changed his position to claim "constructive dismissal" based on an alleged breakdown of trust in the employment relationship.
The case raised important questions about the nature of dismissal in labour hire arrangements, specifically whether removal from a client site constitutes dismissal by the labour hire employer, and what happens when a worker declines further assignments.
Labour hire contract terms challenged
The worker was employed by Tusk Group Pty Ltd under a contract dated 23 August 2023 as a "casual on-hired employee." His contract stated that "Termination of an assignment by the Employer does not of itself constitute termination of employment" and that "The Employer may change or terminate assignments of the Employee without reason."
Tusk provided workers to various clients, including a Kmart distribution centre in Truganina, Victoria. Operations at this site were partly managed by another company called Toll, which had authority to determine which Tusk employees could work there.
On 7 October 2024, an incident occurred involving the worker and another Tusk employee. As a result, both were removed from the site by Toll, not by their employer Tusk.
The worker's employment contract made it clear that assignments could change and that termination of an assignment was not termination of employment. This distinction became crucial to the case.
Emma Rustichelli, an occupational health and safety (OHS) coordinator for Tusk, investigated the incident and spoke with all parties involved. She couldn't definitively determine who started the altercation but recommended the worker receive a warning rather than more serious discipline.
When discussing her findings with Toll's area manager, she suggested the worker should return after "education and performance management." However, Toll's manager rejected this, stating "the site does not want [the worker] back."
While the OHS coordinator didn't agree with this decision, she understood that Tusk couldn't override Toll's authority regarding who worked at the site.
On 10 October, she informed the worker about the warning and arranged for a workforce specialist to find him another assignment.
Jasmine Alusoska, a workforce specialist at Tusk, called the worker on 10 October and offered him an assignment with Holman Industries as a casual pick packer. The worker accepted, attended a 'meet and greet' on 11 October, and started working there on 14 October.
Despite accepting this new assignment, the worker lodged an unfair dismissal application that same evening, claiming he had been dismissed when told he couldn't return to the Kmart site.
The worker continued at Holman Industries for several weeks until 6 November, when that client ended his assignment due to performance concerns. The workforce specialist called him that day and promised to find another assignment. The worker indicated he needed work "ASAP."
Two days later, the workforce specialist found another job opportunity and contacted the worker. He initially replied that he "might have something already lined up."
On 11 November, the worker sent an email declining any future positions, writing: "I am inclined to decline any future positions for the time being. I have concerns that accepting another assignment may undermine the seriousness of my case with Fairwork and jeopardize my standing."
In documents filed with the FWC, he stated: "I have declined temporary placements to fully dedicate myself to pursuing justice, ensuring this does not happen to others in the future."
At the hearing, the worker changed his argument, claiming the date of dismissal was actually 11 November 2024, which he described as a "constructive dismissal" based on "the failure to redeploy" him to the Kmart distribution centre.
The worker stated: "That's when I stopped trusting Tusk because they already failed me twice. They failed to protect me because of the measure of bias and the double standards when they were allowing the other worker to come back, and that led to the breakdown of the trust."
The FWC determined that the worker was not dismissed under the Fair Work Act definition, which requires either termination by the employer or forced resignation due to employer conduct.
The Commissioner explained that the contract clearly established the nature of labour hire work: "[The worker's] contract of employment was very clear. His employment was not, contrary to [the worker's] apparent view, fixed in location at the Kmart distribution centre."
The evidence showed that Tusk had made genuine efforts to continue the employment relationship by promptly finding alternative assignments after each client ended the worker's placement.
"If there was any doubt that the employment relationship with [the employer] did not end after [the worker's] assignment to the [distribution centre] ended, it was laid to rest with the fact that [the employer] promptly committed to finding [the worker] new work and successfully did so."
The Commission concluded that it was the worker's email declining further assignments that actually ended the employment: "It was [the worker's] email sent on 11 November 2024 that ended his employment relationship with [the employer]. [The worker] evidently wishes to challenge the decisions of [the clients] regarding his assignments with them. So much can be accepted but [the employer] did not dismiss [the worker]. [The worker] resigned."
As the worker was not dismissed, his unfair dismissal application was dismissed by the FWC.
