Worker argued she was fired when the company stopped offering shifts
The Fair Work Commission (FWC) recently dealt with a worker’s claim alleging she was fired after the employer stopped offering her shifts. The employer argued that she “wrongly considered” herself to be entitled to permanent work.
The worker, Alexandra Cecily Joan Walsh, filed a general protection involving dismissal application against her employer, PersolKelly Australia Pty Ltd. On the other hand, the latter said the worker was not "dismissed."
The employer is a labour-hire provider that supplies labour to third parties under commercial contracts, including staffing solutions and recruitment services. One of its clients is 3M Australia Pty Ltd (3M).
From October 2012 to July 2018, the worker was employed by a labour-hire company, supplying her as staff to 3M.
Between July 2018 and May 2020, Kelly Services Australia Pty Ltd (KSA), another labour-hire company, employed the worker, who was then supplied as labour to 3M.
New employment contract
In May 2020, a business transfer occurred between KSA and the employer. Following this transfer, the worker received a new written contract of employment from the employer, with her prior service recognised.
The worker agreed to the terms and conditions outlined in the employer's "Casual Employee Contract" on 29 April 2020. The assignment with 3M continued under the new employer.
On 20 June 2023, 3M informed the employer that it no longer required the worker's placement, effective 30 July. The employer informed her of 3M's decision on 21 June.
The worker then took a period of paid long service leave (LSL) from 31 July to 6 September. The employer paid this leave weekly throughout the period.
‘Not been offered any work’
According to records, the worker could not accept that she had no more shifts with 3M. She said that “she was still seeking to negotiate (or otherwise negotiating) an employment contract with the [employer, but] was forced to agree to the Casual Employment Contract to keep her job or was misled into agreeing [to its terms].”
She said she was dismissed because “she has not been offered any further work, or work assignments, by the [employer].”
‘No guaranteed work’
On the other hand, the employer’s principal recruitment consultant disputed the worker’s arguments.
“With our business how it works with PersolKelly, if your assignment ends you still remain on our books as an active candidate. So you are there for other people to contact you about other work and vacancies,” the consultant said.
“You don't just kind of get put into an archived file. You're still on our systems. So it's not like your assignment finishes, and you're completely wiped from the database. You're still there,” the consultant added.
The employer further argued that the worker was engaged on a standard casual labour-hire basis and had agreed to terms that included no guarantee of work, permanency, or work for a specific client. The employer contended that any absence of work after her engagement at 3M was the worker's decision.
It maintained that the worker's case was caused by “grievance” and that she “wrongly considered herself a permanent employee” of 3M with entitlement to ongoing work or redundancy pay. It said the worker’s position “ignores the factual and legal reality of her engagement.”
Was there dismissal?
The FWC said that the evidence and circumstances “do not disclose that the employment relationship between the [worker] and the [employer] has come to an end.”
“Rather, the evidence discloses that the [employer] remains open (or ready, willing, and able) to assist the [worker] to be placed in a further work assignment/via the [employer] on a casual labour-hire basis,” the FWC said.
Thus, it said that there was no dismissal and, consequently, it dismissed the worker’s claim against the employer.