Saturday, 26 May 2018

Labour Hire Workers Dismissal Found to be Fair in the Fair Work Commission

Brian Newman - Director of Investigations & Advocacy

In Pettifer v MODEC Management Services Pty Ltd, a Full Bench of the FWC found that a labour hire employee was validly dismissed for lack of capacity after the host business requested his removal from a project.

Since the employee had been specifically engaged to perform work for the host, the Full Bench concluded that his removal from the project rendered him unable to perform the inherent requirements of the position.
Unlike in Kool v Adecco, the contract in Pettifer unequivocally provided the host with the right to exclude an agency worker from its workplace.

Further, the agency in Pettifer did not merely endorse the employer’s decision as occurred in Kool v Adecco.

Instead, the agency conducted its own investigation and formed the independent conclusion that the employee had not done anything which warranted dismissal, even though it was contractually required to follow the host’s direction to remove the employee.

The agency also made a genuine attempt to find the employee alternative work.

This is another case where the worker has fallen victim to the perils of a complex system of outsourcing employment, thereby effectively robbing the worker of access to workplace justice and fairness in the manner in which they are dealt with.

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