FWC case explores complex nature of labour agreements
The Fair Work Commission (FWC) recently dealt with a case involving a worker who alleged that two companies were involved in his dismissal claim.
One of the alleged employers objected to the application, arguing that they were merely a host employer under a labour hire agreement.
The case discussed the complexities of such contracts and the question of whether the worker was genuinely dismissed by the employer.
The FWC also had to consider the effect of the worker having filed both an unfair dismissal claim and a general protections application in relation to the same dismissal.
Offer Letter of Employment
The worker gave evidence that he first engaged with the employer when he responded to a job advertisement on LinkedIn.
After several interviews and communications with various entities, including JD.com, Global Employee Services, CDP, and JD Worldwide, the worker received an "Offer Letter of Employment" from Easy Payroll Global Pty Ltd (EPG).
The worker ultimately signed a contract of employment with EPG, which specified that "The Client will initially be JD Logistics."
The worker argued that JD.com directed his work on a daily basis, and he was deeply involved in their operations. However, he also accepted that EPG played a role in his employment, handling payroll and human resources-related formalities.
Preventing multiple actions
The FWC noted that the worker had filed an unfair dismissal claim against EPG 14 days before filing the general protections application against JD.com. The unfair dismissal claim was later resolved and discontinued.
The FWC found that the worker was prevented by s.725 of the Act from bringing two different claims relating to the same dismissal.
As the unfair dismissal claim was made first and had not been withdrawn or dismissed as being outside jurisdiction when the general protections claim was made, the worker was prevented from making the second application.
Worker’s true employer
The FWC then considered whether JD.com was the worker's employer and could have dismissed him in contravention of the general protections provisions of the Act.
The worker asserted that he was employed in a "tripartite agreement" involving EPG and JD.com, with JD.com exercising control over his employment on a daily basis.
The employer referred to case law establishing that the mere existence of a labour hire arrangement does not necessarily result in an employee-employer relationship between the client and the worker.
The FWC considered the commercial authenticity of the arrangements and found that EPG was genuinely conducting a business of its own, having entered into a written contract with the worker and assuming various employment-related obligations.
The FWC acknowledged that JD.com exercised significant control over the worker's performance of his work but noted that this was not necessarily inconsistent with the worker's contract being with EPG in a genuine labour hire arrangement.
Consequently, the FWC dismissed the worker's application, finding that it was prohibited by s.725 of the Act due to the worker having already filed an unfair dismissal claim relating to the same dismissal.
Furthermore, the FWC found that even if the application were not barred, JD.com was not the worker's employer and could not have dismissed him in contravention of the general protections provisions.
The case highlighted the importance of carefully considering the nature of labour hire arrangements and the potential limitations on pursuing multiple claims arising from the same dismissal.
