The recent case of Star v WorkPac Pty Ltd (2018) FWC 4991 is a timely reminder that labour hire agencies cannot rely on their contractual arrangements to avoid unfair dismissal protections in circumstances where the host decides to exclude a particular employee from a site.
Regardless of whether the host business has a contractual right to direct the agency to remove a person, the agency should conduct its own investigation into the circumstances leading to the employee’s removal, including giving the employee an opportunity to respond to any allegations made by the host. Additionally, the agency should explore any redeployment options for the employee.
The agency in the present case sought to rely on Pettifer v MODEC Management Services Pty Ltd as authority for the proposition that where a host business exercises its contractual right to direct an agency to remove an employee from a site resulting in the employee’s dismissal, the employee will be validly dismissed on the grounds of incapacity to perform the inherent requirements of the position.
However, the FWC rejected this argument, emphasising that all of the facts surrounding the direction to remove the employee must be taken into account in determining whether the dismissal was unfair.
There was evidence here that additional labour hire workers with the same qualifications and skillset were mobilised onto the site after the employee’s dismissal. Accordingly, it could not be said that the employee was dismissed for capacity reasons.
Read the full text of the Commission’s decision here: Star v WorkPac Pty Ltd (2018) FWC 4991.
For help with any industrial relations matters, call Brian Newman or Workers First on (07) 3807 3807 or email firstname.lastname@example.org
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