Removed from a mine site by the client, reinstated by the Commission

What happened

Ms Kim Star was a machinery operator at the Goonyella Riverside coal mine, about 30 kilometres south of Moranbah in Queensland. The mine is run by BHP Billiton Mitsubishi Alliance (BMA), but Ms Star was not BMA's employee. She was employed by WorkPac, a labour hire company, which supplied her to the mine from October 2013.

She was engaged as a casual, but for over four years she worked a regular full-time roster of fourteen days on and fourteen days off. Her partner worked in the same crew, and she said she had been approved to take on a trainer and assessor role.

On a night shift on 9 November 2017 she refused to dump a load on a ramp that had no lights, and asked over the radio for lighting. A grader driver told her she did not need it. Lights were brought, and the open cut examiner later confirmed she had followed the standard operating procedure, though he also told her she had been "assertive" on the radio.

The next day BMA emailed WorkPac to say it no longer required Ms Star at the mine, effective immediately. It gave no reason, and nobody at WorkPac asked for one. On 13 November 2017 WorkPac phoned her, and its letter that day said her "casual assignment has come to end" and "this termination is non-performance related".

The claim, and WorkPac's answer

Ms Star applied to the Fair Work Commission for an unfair dismissal remedy and asked for her job back. WorkPac's main answer was that it had not dismissed her at all. It said only her Goonyella assignment had ended, that she stayed in its pool of workers, and that the relationship ended later because she told a recruiter she was not sure she wanted to work again in 2017.

Under s 386(1) of the Fair Work Act 2009 (Cth), a person is dismissed only if their employment is terminated on the employer's initiative. If WorkPac was right, there was no dismissal and the claim failed at the first step.

Was it a dismissal?

Deputy President Asbury asked whether an action of the employer was the principal contributing factor that ended the employment relationship. She started with WorkPac's own terms, which said employment was "on an assignment-by-assignment basis, with each assignment representing a discrete period of employment". When the assignment ended, so did the employment.

She accepted that a labour hire employee can sometimes stay employed between placements, but said that depends on the contract and the facts. Ms Star had been hired for one site only and had worked there for over four years. WorkPac's later calls about other jobs were at best an attempt to find her a new assignment, which would have started a new employment relationship. WorkPac's own log recorded that she was terminated from her job order as "Unsuitable". She was dismissed on 13 November 2017.

Why the dismissal was unfair

Section 387 lists the matters weighed in deciding whether a dismissal was harsh, unjust or unreasonable. The first is whether there was a valid reason related to the worker's capacity or conduct, meaning one that is "sound, defensible or well founded". The employer must show it.

WorkPac said the reason was that it could not place her elsewhere, relying on Pettifer v MODEC Management Services Pte Ltd [2016] FWCFB 5243, where a host's ban left a worker unable to do his job. The Deputy President rejected this, because WorkPac ended Ms Star's employment before redeployment was considered. As BMA's email came straight after the night-shift dispute, she found the reason was more probably about Ms Star's conduct, and WorkPac, having chosen not to ask BMA, had no evidence to the contrary. That was not a valid reason.

The process failed too. Ms Star was never told why she was removed and never had a chance to respond. WorkPac departed from its own usual practice of asking the client for reasons, and did not use a clause in its contract with BMA that allowed performance concerns to be discussed before a worker was removed.

Above all, the contract between a labour hire company and its client "cannot be used to defeat the rights of a dismissed employee", and it is no defence that the employer was following another company's direction.

How it ended

Reinstatement is the primary remedy for unfair dismissal. The Deputy President warned Ms Star that it carried risk: WorkPac could not force BMA to let her back on site, and by then she had a permanent, better-paid job with Thiess, at another BMA mine. She pressed for it anyway.

In a second decision on 17 September 2018, the Commission refused to let WorkPac bring late evidence that BMA would not have her back, calling the enquiry "too little, too late". It ordered WorkPac to reappoint her as a Level 3 Mine Worker at Goonyella Riverside, maintain her continuity of service and pay her $4,475 in lost pay.

What this means for you

If you work through a labour hire company and a client says it no longer wants you, that can be a dismissal by your employer, especially if you were hired for one site. Keep copies of your terms and letter of offer, and ask in writing why you were removed.

For labour hire employers, the lesson is to find out why, give the worker a chance to answer, and look properly at redeployment before ending the employment. An unfair dismissal application must be lodged within 21 days of the dismissal taking effect.