The business at the centre of the controversial court ruling on casual leave entitlements has faced another blow, being ordered to reinstate a worker and backpay them after losing an unfair dismissal claim.
Queensland labour hire business WorkPac Group was found in August to have unfairly dismissed Kim Star, who was stood down after its unnamed client demanded she be removed from its site.
The Fair Work Commission (FWC) found that WorkPac had failed in its duties as an employer by not investigating the source of friction with its client and whether the move to remove Ms Star was justified.
That left the reason down to educated guesswork – likely an altercation Ms Star had with a manager – which the FWC ruled was also not a fair and valid justification for termination.
WorkPac claimed that, as a labour hire firm, it had not sacked Ms Star, but merely “demobilised” her from the current assignment on which she was employed.
Ms Star was issued with a letter dated 13 November 2017 that stated in part, “as this termination is non-performance related, you are welcome to continue to liaise with our local offices to ascertain whether there are any other placements within our skill set…”
However, Ms Star disputed this, stating that she received no subsequent employment with the company.
During the hearing, it was revealed that WorkPac’s client had provided no reason for the request to stand-down Ms Star, and that WorkPac had failed to seek a reason. In doing so, it had not provided Ms Star the opportunity to respond to any allegations against her conduct or performance.
This was particularly pertinent given she had been involved in an altercation with a manager on the site just days before being removed from the site.
“Ms Star’s dismissal was brought about by the response of WorkPac to the directive from [the client] to remove her from the … site,” the commission’s deputy president, Ingrid Asbury, determined.
“It is more probable than not that the directive was related to Ms Star’s conduct on the night shift on 9 November 2017, or the perceptions of… managers about that conduct. As a result, I am satisfied that Ms Star’s dismissal related to conduct. [But] that conduct was not a valid reason for dismissal.
“There is no evidence of any other reason – valid or otherwise – for a directive to be issued by [the client] requiring the removal of a longstanding labour hire employee.”
Moreover, the FWC ruled that Ms Star had been employed solely to work at this particular site, and that her removal constituted termination of employment.
Reinstatement ordered, with back pay
While many unfair dismissal claims see the individual and employer part ways, Ms Star pushed to be reinstated to her position.
Yet the FWC seemed initially reluctant to grant this request, and offered both parties an opportunity to consider the impact of this decision.
Admitting that “it is probable that there is more water to go under the bridge with respect to compliance with the Order I intend to issue,” Ms Asbury ruled in Ms Star’s favour, and ordered she be reinstated to her former position, with her record showing full continuity. Ms Star was also ordered to be paid $4,475 for remuneration she lost as a result of her dismissal.
It caps off a difficult period for WorkPac, which also lost a Federal Circuit ruling regarding an employee on a casual contract being deemed eligible for annual leave and other employee entitlements.
Adam Zuchetti is the editor of My Business, and has steered the publication’s editorial direction since early 2016.
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