What Are An Employee’s Rights If You’re Dismissed By A Labour-Hire Organisation – Does it Count as a Dismissal?

Can a labour-hire company dismiss an employee simply at the request of its client?

The case of Star v WorkPac sheds light on this question.

WorkPac Case Background

Workpac is a labour hire business. It keeps a pool of candidates which it then supplies to clients such as BHP Billiton Mitsubishi Alliance (BMA). It hired Ms Star as a Machinery Operator at a mine as a casual worker. She worked 4 years at the Goonyella Coal Mine.

On 13 November 2017, Star received a letter from Workpac advising her that BMA had demobilised her position and her termination was not performance related.

Workpac clarified that it had not terminated the employment of Star but only finalised her assignment at BMA as she was advised that BMA no longer required Star’s services on the site.

Workpac did not ask BMA for its reasons for requesting to finalise the assignment of Star at Goonyella.

Under the contract between Workpac and BMA, Workpac had the right to investigate the reasons why BMA would request the removal of a Workpac employee from their site.

If BMA declines to give a reason, Workpac presumes that Star was not excluded for misconduct and Workpac will then redeploy Star to an alternative assignment.

If BMA provided a reason that is related to performance or misconduct, then Star will be given an opportunity to respond to any allegations against her as is her employee rights under the Fair Work Act 2009.

Star was not offered redeployment at other work sites. She was not told that she could apply for other jobs with Workpac’s other clients. Workpac countered by saying that they had asked Star to provide an updated resume for them to offer her new employment.

Star was working a night shift. Her duty was to collect rejects and take them to a ramp. When she got to the ramp, there were no lights. She refused to move and dump the rejects without any light. She requested lights. When the lights were delayed, she went on the radio and said she was taking back her load where she got them. She was assured by others in the team that she had followed safety protocol. Later, she was told that her tone of voice over the radio was aggressive. Three days later, BMA requested Workpac to terminate Star’s contract. She found a higher paying job from another employer.

The Employee Won Her Unfair Dismissal Claim

The Fair Work Commission found the termination was at the initiative of the employer and not a termination because the contract had expired – as Star’s employment contract was not time-limited.

When Star was informed that her services were no longer required at the Goonyella Riverside Mine, her contract of employment with Workpac was terminated. Star was terminated because BMA alleged Star was deemed unsuitable and had received a negative rating from BMA. The letter Workpac sent Star demonstrated the termination of the employment relationship.

By dismissing Star without any valid reason and without giving her the opportunity to respond to the allegations against her, the dismissal was harsh, unfair and unreasonable.

The dismissal violated the employee’s rights.

The labour hire employer (being WorkPac) should have determined first if BMA had a valid reason for dismissing Star. Also, WorkPac should have given Star an opportunity to comment and respond to the allegations against her by BMA – not just dismiss Star without undertaking a proper investigation and review.

The employee won her unfair dismissal claim against WorkPac.

Full case citation: Kim Star v WorkPac Pty Ltd T/A WorkPac Group [2018] FWC 4991

If you have any further queries about your specific employee rights and responsibilities, please contact our legal team on (08) 9470 2777.

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