Labour hire organisations cannot terminate employees (protected from unfair dismissal) solely for the reason a host employer has revoked their working arrangement.

In the recent case of Tasmanian Ports Corporation Pty Ltd. v Gee [2017] FWCFB 1714 (Gee) the Full Bench of the FWC dismissed an appeal by a labour hire organisation against a decision that found that the employer had unfairly dismissed an employee.

The Full Bench cited with approval the case of Kool v. Adecco Industrial Pty Ltd. [2016] FWC 925 (Adecco) where the FWC held that labour hire organisations cannot use contractual relationships to deploy employees to a host employer to abrogate their responsibility to treat employees fairly. To find otherwise would effectively give labour hire organisations the power to contract out of unfair dismissal legislation.

In Gee, the appellant labour hire company was a marine port owner-operator, which also supplied labour to privately owned ports. The respondent was assigned to work for a private port in 2009.

After six years of working for the private port, the respondent's site access was revoked due to a series of alleged indiscretions investigated by the principal contractor, including failing to follow reasonable work directions, circumventing reporting protocols and improperly using his mobile phone and social media while on site. The labour hire company then terminated the worker's employment, reasoning that his removal from the site left him unable to perform the inherent requirements of his job.

In dismissing the labour hire company's appeal, the Full Bench noted that the principal contractor's investigation was procedurally flawed and its outcomes were unsound. The commission determined that the labour hire company had simply adopted the other business' findings without further inquiry and had not made any effort to find the worker alternative work before dismissing him.

This decision should remind labour hire employers to be aware of their obligations to treat employees fairly, irrespective of a host employer revoking their placement, and genuine efforts should be made to find an employee alternative suitable roles before terminating their employment.