Wednesday, 27 March 2024

‘Disingenuous’ Removal of Labour Hire Worker From Client Site Found to be a Dismissal

At times, workers in the labour hire industry can find the lines blurred between their actual employer and their host employer, particularly where they have been assigned at the host for a long period of time and do not perform work for other host employers. Even so, traditionally, where there is a contractual right to reassign a given worker, if a host no longer wants that particular worker on site, their removal is generally not treated to be a dismissal.

However, in the recent decision of Ms Zvetanka Raskov v Adecco Australia Pty Ltd, the Fair Work Commission (FWC) clarified the circumstances in which the ending of an assignment with a host can still be considered a ‘dismissal’.

The Case of Ms Zvetanka Raskov v Adecco Australia Pty Ltd

Ms Raskov was employed by Adecco as a casual employee and was assigned to work at Amazon’s worksite, during which time she regularly asked about ongoing permanent employment with Amazon. She remained a casual labour hire worker until Amazon informed Adecco that there were allegations of misconduct against Ms Raskov. The allegations included that Ms Raskov had stared at another employee in an intimidating manner, laughed in her face and made other inappropriate comments.

Adecco initiated an investigation into the allegations, soon after which Ms Raskov applied for a stop bullying order against them. At the conclusion of the investigation, Adecco informed Ms Raskov that her assignment with Amazon was being brought to an end, but that her employment with Adecco was ongoing and they would seek further assignments for her.

Ms Raskov made a general protections application with the FWC alleging that her employment with Adecco was terminated because she made enquiries about her employment and because she made the application for the order to stop bullying at work. When the matter was before the FWC, it was first required to determine whether there had been a “dismissal” at Adecco’s initiative. Adecco objected to this, arguing that Ms Raskov had not been dismissed.

The FWC said there was no evidence that Adecco had taken any steps to find new work for Ms Raskov, and it was found that “it is disingenuous on the part of Adecco to say on one hand that the allegations against Ms Raskov were so serious that they justified removing her from the Amazon site… but not so serious that they make her ineligible for future client assignments.”

It was held that the way Adecco had managed the situation in removing Ms Raskov from her assignment with Amazon, and the lack of effort to find alternative assignments thereafter, amounted to termination of her employment with Adecco.

This finding meant that Adecco’s objection failed, and the general protections claim could proceed.

What do labour hire and host employers need to be aware of as a result of this decision?

In its decision, the FWC observed that where a worker:

  1. Has been assigned to a single host employer for a long period of time;
  2. Is removed for conduct or performance reasons (rather than operational reasons); and
  3. Is not offered or provided with alternative assignments after the removal,

this indicates there is a dismissal from employment.

However, each case is to be decided on its own merits, and it is not a universal principle that removal from a client site will automatically be considered a dismissal.

In the recent matter of Nicole Fonofehi v APS Group (Holdings) Pty Ltd [2024] FWC 177 in which HR Legal acted for the respondent employer, it was found that good contract construction and genuine offers of further work meant that the cessation of a long-term assignment was not a dismissal from employment, even where the worker did not accept any subsequent work.

What is Next?

It is therefore crucial for employers in the labour hire industry to review their employment contracts with labour hire employees, and to be particularly cautious when ceasing long-term assignments, to ensure this does not constitute a dismissal.

Source: Ms Zvetanka Raskov v Adecco Australia Pty Ltd [2024] FWC 584


This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.

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