Recent unfair dismissal decisions affecting employers that place workers on client sites

A recent decision of the Fair Work Commission has reminded employers that place their workers on a client site that their obligation to ensure a dismissal is fair, is not displaced by the employer’s client’s decision to refuse site access to the worker.

In another recent decision, the Fair Work Commission ordered a labour hire employer to reinstate a labour hire worker to her position even though the host client/employer refused the worker access to site.

Catherine Hocroft v Verifact Pty Ltd [2018] FWC 6115

Ms Hocroft was a full-time paramedic at a BHP mine who performed drug and alcohol testing at the mine. Verifact dismissed her with one week’s pay in lieu of notice, citing:

  • inappropriate conduct during drug and alcohol tests that she performed; and
  • that she copied the client into an email that stated concerns about her job description and leave entitlements.

Significantly, Verifact:

  • did not give her details about the inappropriate conduct; and
  • told her that its hands were tied because its client had refused her access to the site.

The Fair Work Commissioner found:

  • BHP had communicated to Verifact some concerns about Ms Hocroft’s manner when conducting tests;
  • BHP removed the worker’s site access; and
  • The contract between BHP and Verifact permitted BHP to remove the worker’s site access with little capacity for Verifact to challenge the decision.

However, the Commissioner also found that Verifact was not thereby excused from providing Ms Hocroft due process and that Verifact had in reality outsourced the decision to dismiss to its client. There was no valid reason for dismissal and Ms Hocroft was unfairly dismissed. Ms Hocroft was awarded 10 weeks’ pay less amounts she had received from her new employment in that period.

Ms Kim Star v WorkPac Pty Ltd T/A WorkPac Group [2018] FWC 5745

Ms Star was employed by WorkPac as a casual employee to perform work at a black coal mine site. Ms Star was dismissed by WorkPac after a direction by the mine site operator to remove her from the mine site.

The Fair Work Commission found:

  • There was no valid reason for the directive to be removed from her role at the site.
  • There was no discussion with Ms Star about it beforehand.
  • There was no attempt by WorkPac to discuss it with the mine site operator.

The Fair Work Commission ordered WorkPac to return Ms Star to her former position at the mine even though:

  • Ms Star had since found other employment at a higher salary; and
  • a reinstatement order could be detrimental to her if WorkPac could not persuade BMA to reinstate her access to the mine site.

The FWC also ordered payment of compensation.

Implications for employers

Employers that place workers on client sites are recommended to:

  • consider negotiating terms into their client agreements, that the client will not refuse access to a worker without undertaking an investigation or (at the very least) will only suspend access temporarily until an investigation is undertaken
  • consider including terms in their employment agreement with the worker, that allows the employer to:
  • suspend employment if a client has refused the employee access subject to an investigation
  • terminate an employment agreement if a client refuses the employee access subject to considering any redeployment opportunities
  • consider redeployment before making the decision to dismiss an employee whose site access has been refused
  • review their processes for disciplinary action and dismissal; and
  • ensure they investigate, manage and provide fair process for workers who are entitled to fairness in a dismissal process.

This article is general commentary on a topical issue and does not constitute legal advice. If you are concerned about any topics covered in this article, we recommend that you seek legal advice.

For further information please contact the author – Robert King, Partner – Employment, Workplace Relations & Safety.

The Author

Robert King