Labour hire company said worker still an employee and being offered work at other sites
The Fair Work Commission (FWC) recently dealt with a general protections application from a worker who alleged he had been dismissed from his employment in contravention of the Fair Work Act.
The employer objected to the application on the grounds that the worker was not dismissed from his employment, as he continued to be an employee.
Before dealing with the dispute, the Commission had to be satisfied that the worker was dismissed.
The case required the FWC to examine whether the worker had been dismissed, whether his employment was terminated on the employer's initiative, and whether the Commission had jurisdiction to deal with the application.
Worker's version of events
In his application, the worker explained that he was employed by a labour hire company that placed him as a casual worker for a pharmaceutical distribution company at its site in Kemps Creek, New South Wales.
The worker said that he worked for a month and was removed from the roster on 27 June 2025 under the stated reason of "low volume work".
The worker said that he was sent home early three times that week while other workers remained behind to complete their shifts, indicating that work was still available.
The worker attached an email from the labour hire company to his application dated 27 June 2025, which provided: "Unfortunately, due to low work volumes onsite, you have been removed from the roster and are no longer required at [the host company]. Please contact our office for other available work opportunities."
The worker named a team manager at the host company as an additional respondent to the application.
Employer's explanation
The labour hire company filed a response which stated that the worker was still an employee, had continued to discuss other work options, was being offered work at other sites, was not required on site anymore at the host company but had not been dismissed, and agreed when he commenced employment to be placed on sites as determined by the labour needs of the host employer business.
The labour hire company subsequently provided file notes from a general manager, which recorded that the company had contacted the worker in July and August 2025 to offer him roles at other companies.
The team manager at the host company filed a witness statement. A head of people and capability at the host company also filed a witness statement.
This person provided evidence that at all times the worker was engaged on a temporary labour hire arrangement through his employer, the labour hire company.
The person explained that the labour hire company was a labour hire company which the host company used to supply contingent labour on a labour hire basis to fill temporary peaks in demand.
The person said that such engagements were temporary, and their duration could vary. The person said that the worker was not and never was employed by the host company, nor was he a prospective employee.
The team manager gave evidence that during the short period that the worker worked at the host company, there were persistent issues with his lack of punctuality and conduct. Further, in late June 2025, the host company experienced a downturn in work.
The team manager said that for these reasons, the shift manager decided that the host company no longer required the services of the worker. On 27 June 2025, the shift manager advised the labour hire company that the worker was no longer required.
Case management and hearing process
The matter was initially listed for a case management conference on 18 August 2025. The worker did not attend the conference.
Following the conference, the Deputy President's associate sent an email to the worker noting that he did not attend the conference and that the Deputy President had formed the preliminary view that the Commission had no jurisdiction to deal with this matter as there had been no dismissal.
The email stated that if no response was received by a specified date, a publicly available decision dismissing the application would be issued by the Commission.
On 22 August 2025, the worker sent an email apologising for his non-attendance at the case management conference. The worker explained that he was overseas due to an urgent family emergency involving sensitive personal matters and was unable to attend or advise the Commission in advance due to limited communication access.
The worker requested that the Commission reschedule the conference to allow him the opportunity to properly respond to the claims made by the labour hire company. In response to a request, the worker provided evidence that showed he was overseas during the period from 26 July 2025 to 21 August 2025.
Rather than list the matter for a further case management conference, the Deputy President decided to issue directions for the filing of material and to list the matter for hearing on 30 September 2025 to determine the labour hire company's jurisdictional objection that the worker was not dismissed.
On 22 September 2025, the worker sent an email advising that due to an urgent and unforeseen personal family matter, he would be required to travel overseas during the period that the hearing was scheduled and would be unable to attend the hearing in person.
The worker requested that the hearing either be rescheduled to a later date or that it proceed as a video hearing. In response to a request, the worker provided evidence that showed he would be overseas during the period from 21 September 2025 to 5 October 2025.
Labour hire dismissal principles examined
After seeking the views of the other parties, the Deputy President adjourned the hearing to 13 October 2025.
The worker and the labour hire company did not attend the hearing.
Prior to the commencement of the hearing, the Deputy President's associate unsuccessfully attempted to contact the worker by telephone, so the hearing proceeded in his absence.
The Deputy President determined the matter based on the material filed by the parties and dismissed the application.
The Deputy President stated the expression "termination at the initiative of the employer" was well understood to be a reference to a termination that was brought about by an employer, and which was not agreed to by the employee.
In circumstances where the employment relationship was not left voluntarily by the employee, the focus of the inquiry was whether an action on the part of the employer was the principal contributing factor which resulted, directly or consequentially, in the termination of the employment.
The issue of whether a labour hire employee who was removed from their placement with the host employer had been dismissed had been considered on numerous occasions by the Commission.
The Deputy President referred to previous decisions where the fact that the applicant in each case worked for a single host employer for an extended period, was removed from the host employer's site for conduct or performance reasons rather than operational requirements, and was not provided with an alternative assignment were all matters weighing in favour of a finding of dismissal.
Apart from the reason for the worker's removal from the host company site being partially for performance reasons, these factors were not present in the current proceedings.
The worker worked for the host company for only one month, and the material before the Commission showed that the labour hire company continued to offer work to the worker.
No dismissal finding made
The worker did not dispute this but claimed that the roles that he was offered by the labour hire company were not suitable.
There was no evidence before the Commission which established that the offers of work which the labour hire company had provided to the worker since his removal from the host company site were not genuine or designed to give a false impression that the worker continued to be employed when this was not the case.
The Deputy President stated: "[The worker's] complaint is clearly about [the host company's] decision to cease offering him work."
The worker claimed that there was work available at the host company, and he had been unfairly removed from the site.
However, the worker had not pointed to any aspect of his employment relationship with the labour hire company which imposed an obligation on either the labour hire company or the host company for the worker to be provided with work at the host company if such work was available.
Further, there was no dispute between the parties that the worker was not employed by the host company.
There was no evidence that the labour hire company was in any way involved in the host company's decision to remove the worker from the site.
As such, the host company's decision could not be attributed to the labour hire company and there was no basis to find that the labour hire company dismissed the worker when the host company ceased offering work to the worker.
The Deputy President made findings that the worker commenced employment with the labour hire company on 27 May 2025, was assigned by the labour hire company to work for the host company at its site, had never been an employee of the host company, and on 27 June 2025 the host company advised the labour hire company that the worker was no longer required to work at its site.
On 27 June 2025, the labour hire company advised the worker of the host company's decision and asked the worker to contact the labour hire company for other available work opportunities.
The labour hire company had contacted the worker in relation to work opportunities in July and August 2025.
Based on these findings, the Deputy President concluded that the worker continued to be an employee of the labour hire company.
In the event that this was wrong because the worker had not performed work for the labour hire company since 27 June 2025, the Deputy President found that the labour hire company had not engaged in any action which was the principal contributing factor that resulted, directly or consequentially, in the termination of the worker's employment.
For these reasons, the Deputy President determined that the worker had not been dismissed by the labour hire company. The application was dismissed.
