This recent case warns that labour hire companies cannot
"abrogate [their] responsibilities to afford procedural and
substantive fairness to a dismissed employee by relying on the fact
that unfair treatment was meted out by another entity in which
[they] had placed the employee."
Adecco Australia were found by the FWC to have unfairly
dismissed a factory worker it withdrew from its client's
factory after she was wrongly accused for card clocking - a
practice whereby an employee clocks off another employee.
The employee was assigned as a casual factory worker at the end
of 2012 to Nestle Chalet Patisserie where she worked regular hours
on what was essentially a full time basis for almost two and a half
Nestle managers informed Adecco that the employee had engaged in
misconduct associated with repeated clocking off breaches and was
"no longer required". Adecco accepted that this was the
case without question and without consideration of the need to
afford the worker substantive or procedural fairness and removed
the employee from Nestle without warning.
In court, the factory worker stated that the only time she had
clocked someone off was when she was asked to do so by her
Her supervisor had clocked her off "without even
thinking" the week before she was dismissed. Nestle wrongly
concluded that the employee had asked her supervisor to do so and
when they were informed otherwise by the supervisor, they said that
it was not the reason for her dismissal anyway as they had received
complaints that she didn't "fit in".
Adecco argued that despite being removed from Nestle, the worker
was not dismissed as the labour hire company continued to
"seek alternate work" for her. Alternatively, if it was
found that the employment relationship had ended, Adecco argued
that this was not at their initiative.
DP Ashbury found that Adecco did initiate the dismissal and did
little to place the worker in another position.She held that the
managers of Adecco failed to appreciate that a "fundamental
change to the terms and conditions under which an employee is
working can constitute dismissal" and "failure to offer
work to a causal employee can constitute dismissal".
The employee was entitled to question the validity of the
reasons for dismissal by contending that she did not engage in the
alleged conduct and she was also entitled to raise a failure on the
part of the employer to afford her procedural fairness.
A remedy is yet to be determined.
This case serves as a warning to all employers to ensure they
provide their employees with procedural fairness when terminating
Kool v Adecco Industrial Pty Ltd  FWC 925
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An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
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