Worker claims he suffered unfair treatment because of 'Cambodian nationality'
The Fair Work Commission (FWC) recently dealt with the dismissal claim of a worker who alleged he suffered racial discrimination, among other misconduct. The issue in this case was that he filed his application against the wrong company.
In October 2023, Vinh Khuong Tran filed an application with the Commission, raising a general protections dispute concerning dismissal against Australian Pharmaceutical Manufacturers Pty. Ltd (APM).
Tran alleged that APM took adverse action against him for exercising a workplace right, discriminated against him, and dismissed him to engage him as an independent contractor.
Cites unfair treatment, bullying, discrimination
In detailing the reasons for his dismissal, he cited incidents of perceived unfair treatment by his supervisor, including “being sent home early, reduced working hours relative to others, alleged ‘bullying,’ and discrimination based on his Cambodian nationality.”
In subsequent correspondence between the parties, the worker provided additional information, including 13 pay slips and a narrative emphasising that he should have been made a full-time permanent employee due to the superior standard of his work.
He said that his primary reason for his application was unfair treatment, discrimination, and overbearing behaviour by his supervisor, which, according to him, led to job loss and significant personal distress.
APM, in its response argued that the worker was not an employee of APM but rather worked for a labour hire agency known as Labour Power Recruitment Services (Labour Power). APM explained that his dismissal was not within its purview as he was not its direct employee.
APM also said that the reduction in casual labour was caused by significant declines in order volumes, and the worker’s placement was no longer needed due to changes in production requirements.
Worker went after wrong employer
The FWC said that “based on the pay slips, the separation certificate and the evidence of [APM], there is no reasonable argument the [worker] was anything other than a labour hire worker employed by Labour Power.”
“[He] worked as a general hand in the factory of APM as an employee of Labour Power pursuant to a contract between Labour Power and APM as part of the Pact Group. The separation certificate filed by the [worker] states that the reason for the dismissal by Labour Power was a ‘shortage of work’. [He] was dismissed by his employer, Labour Power, because of a shortage of work.”
“He was one of 11 labour hire workers whose placements at APM were discontinued in October for this reason. To be clear, that does not mean that APM dismissed [him].”
“The dismissal itself was at the initiative of his employer, Labour Power. As APM was not his employer, it did and could not dismiss him,” it added. Consequently, it rejected the worker’s application against the company.
