It is estimated that 5% of the Australian workforce are engaged through labour hire agencies. These workers are often referred to as agency staff or temps. Labour hire arrangements are unique because there are three parties to the employment relationship. The employee, the agency and the host employer. Due to this complexity there is often confusion about protection from unfair dismissal for agency staff. Further confusion arises when identifying which party is the actual employer. This article explores how the FWC has recently considered the connection between labour hire employees and unfair dismissal.
Kool v Adecco (2016) Unfair Dismissal Proceedings
In 2012 Adecco employed Ms Kool and placed her at Nestle for more than two years, working up to 38 hours per week. In 2015, Nestle accused her of her of misconduct by allegedly gossiping and clocking staff in and out of work. As a result, Nestle informed Adecco that they no longer required Ms Kool and her assignment was ended. Ms Kool subsequently made an unfair dismissal application to the Fair Work Commission. Adecco defended the application on the basis that:
there had been no dismissal and Ms Kool was still on their books, and
the termination of the placement was not at their “initiative”.
The Fair Work Commission determined that the situation amounted to a dismissal. In addition, the FWC determined the dismissal to be at Adecco’s initiative. The reasons given for this decision were that:
Ms Kool had worked the equivalent of a permanent employee during her placement;
Adecco continued to place employees with Nestle;
Adecco did not offer Ms Kool any alternative work after the placement at Nestle ended;
There was no evidence of an agreement in support of the termination of the employment due to the wish of the client.
The FWC then on to determine that the dismissal was unfair because there was insufficient evidence to support a valid reason. In addition, Adecco was criticised for not affording Ms Kool a fair dismissal procedure.
This case demonstrates that labour hire employers can not escape unfair dismissal laws by treating the host employer as the responsible party. The FWC will examine the nature of the relationship between all the relevant parties in determining whether there has been a dismissal and if so, an unfair dismissal.