Labour hire company argues worker wasn't fired
A worker recently filed a dismissal claim before the Fair Work Commission (FWC), alleging she was dismissed by two employers.
The worker, Julia Ponte, filed a legal action against Hays Specialist Recruitment (Australia) Pty Ltd (Hays) and National Australia Bank Limited (NAB).
Ponte alleged that her dismissal by both companies violated the general protections provisions under the Fair Work Act. Hays, a labour hire and recruitment business argued that Ponte was not dismissed.
Ponte started her employment with Hays on August 9, 2022, on a casual basis as per their terms of engagement.
She later accepted a temporary assignment at NAB, starting on December 13, 2022. Her roles included being a 'Servicing Advisor' with Ubank and subsequently as a 'Personal Direct Servicing Advisor' until the anticipated end date of June 13, 2023, later extended to September 13, 2023.
On June 22, 2023, NAB's manager informed Hays that Ponte had made two non-compliant phone calls, prompting the immediate termination of her assignment. Despite attempts to contact Ponte, the assignment ended via text and email.
Employer tries to find other assignments
In response, Ponte tried to clarify the matter, asserting her rights as a worker with over six months of consistent full-time engagement. Hays said that Ponte's contract with them was not terminated, and they were ready to find an alternative casual assignment.
In July 2023, Hays offered Ponte a new opportunity via text message, recruiting for Call Centre advisors. Subsequently, Ponte filed her application with the Commission on July 13, 2023.
In August 2023, Hays reiterated that her employment with them had not ended, and they were willing to find an alternative casual assignment based on her updated CV.
Ponte argued that Hays' conduct resulted in her "constructive dismissal" due to the decision to end her NAB assignment without proper investigation.
She also argues that the absence of an employment contract with NAB should not determine the existence of an employer-employee relationship.
Was there dismissal by two employers?
The FWC found that Ponte was not employed by two companies. “To the extent that [she] contends that she was jointly employed by both [employers], [the FWC] rejects this contention.”
“Ponte’s employer at all material times was Hays,” it added. “At all material times, Ponte was on a temporary assignment to NAB in accordance with the assignment letter between Ponte and her employer, Hays.”
“NAB’s election to end Ponte’s assignment was not an act of dismissal by NAB because NAB was not Ms Ponte’s employer,” it said.
The FWC also said that she was not dismissed. “Hays offered her further temporary casual work opportunities following the cessation of her assignment with NAB,” and said that it was Ponte who rejected its offers. Thus, the Commission found that she has not been dismissed nor was she forced to resign.
