[2018] FWC 4991
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ms Kim Star
v
WorkPac Pty Ltd T/A WorkPac Group
(U2017/12786)


DEPUTY PRESIDENT ASBURY

BRISBANE, 28 AUGUST 2018

Application for an unfair dismissal remedy – labour hire company directed by client to remove employee from site – finding that applicant was dismissed when labour hire complied with direction to remove her from site – whether valid reason for dismissal related to capacity or conduct – finding that applicant established inference a conduct issue relating to direction to remove her from site existed – labour hire company failure to make enquiry of client to establish reasons for removal from site – finding on balance of probabilities that reason for direction to remove applicant from site related to conduct – no valid reason for removal from site leading to dismissal – failure of labour hire company to consider alternative assignments before terminating applicant’s employment – dismissal unfair – provisional view reinstatement appropriate subject to reservations – opportunity for parties to consider positions in relation to reinstatement.

[1] Ms Kim Star applies under s. 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of her dismissal by WorkPac Pty Ltd T/A WorkPac Group (WorkPac). Ms Star was employed by WorkPac as a Machinery Operator at the Goonyella Riverside Mine on a casual basis from October 2013. WorkPac is a labour hire business that provides labour to its clients in various industries, including the mining industry. The Goonyella Riverside Mine is operated by BHP Billiton Mitsubishi Alliance (BMA) and is located approximately 30 kilometres south of the town of Moranbah.

[2] Ms Star contends that she was unfairly dismissed on 13 November 2017, when she received a telephone call from WorkPac informing her that BMA had “demobilised” her from the site. Ms Star seeks reinstatement. WorkPac submits that there are three possible findings that the Commission may make in relation to Ms Star’s application:

[3] Workpac accepts that if the first finding was made by the Commission the application would be determined in favour of Ms Star. If the second or third finding was made then the application would be determined in favour of Workpac.

[4] Ms Star’s application was made within the time required in s.394(2) of the Act. It is not in dispute that Ms Star is a person protected from unfair dismissal as defined in s.382 of the Act. WorkPac is not a small business and the dismissal was not a case of redundancy. The matter was dealt with by way of a hearing. Both parties sought to be represented by lawyers. Permission was granted on the basis that I was satisfied that it would enable the matter to be dealt with more efficiently, no issues of fairness arose and the facts of the matter were of sufficient complexity to warrant the grant of permission. At the hearing Ms Star was represented by Mr Joe Kennedy of Hall Payne Lawyers and WorkPac was represented by Mr Murray Procter of ClarkeKann Lawyers.

[5] The hearing was listed for 19 April 2018 and 20 April 2018 in Mackay. Ms Star gave evidence on her own behalf. 1 Witness statements were also tendered in support of Ms Star’s application by:

•  Mr Peter Thomas, Haul Truck Operator; 2

Mr Carl Schmidt, Plant Operator and Ms Star’s partner; 3 and

Mr Brett Hazeldine, Open Cut Examiner. 4


[6] WorkPac did not require Mr Thomas, Mr Schmidt or Mr Hazeldine for cross examination, and their statements of evidence were tendered without objection and admitted into evidence. Evidence for WorkPac was given by the following witnesses who were cross-examined at the hearing:

•  Ms Nicole Gray, Recruitment Coordinator; 5

•  Ms Kirsty Anne Roome, Recruitment Coordinator; 6

•  Ms Chloe Nicole Haynes, Business Development/ Site Account Manager; 7 and

•  Mr Darian Boyd Lawson, Business Centre Manager – Mackay and Moranbah. 8

EVIDENCE AND SUBMISSIONS

WorkPac Contract for supply of labour to BMA

[7] Workpac provides labour to BMA at the Goonyella Riverside Mine under a Services Contract most recently executed on 18 September 2017. The Services Contract tendered by Mr Lawson 9 provides at clause 10.1(b) as follows:

[8] According to Mr Lawson, this clause means that BMA may give directives to WorkPac with which WorkPac must comply including the removal of a particular FTM from a site. The Services Contract also provides at clause 12.1 as follows:

[9] It is common ground that the cessation of Ms Star’s assignment at the Goonyella Riverside Mine was not because of a directive issued under clause 12.1 of the contract.

Employment of Ms Star

[10] Ms Gray’s evidence is that when a new employee “signs on” with WorkPac the employee is placed into a pool of labour available for placement with the Company’s clients. The employee is issued with a registration pack consisting of a number of documents. Ms Gray is responsible for “onboarding” new employees who are referred to by WorkPac as Field Team Members (FTMs). Ms Gray tendered a bundle of documents in connection with Ms Star’s employment. On 22 October 2013, Ms Star signed a document entitled “Casual or Maximum Term Employee Terms and Conditions of Employment”. This is a standard document issued to new FTMs by WorkPac. The Terms and Conditions document provides that once signed it has the force of law as a contract and applies to all assignments with any member of the WorkPac group of companies. The Terms and Conditions Document also provides:

[11] A letter headed “NOTICE OF OFFER OF CASUAL EMPLOYMENT – FLAT RATE” addressed to Ms Star and dated 22 October 2013 was also in the documents tendered by Ms Gray. The letter states:

[12] The length of the assignment is specified as six months and the letter further states with respect to the assignment length that: “this may vary and is a guide only”. 11 On 22 October 2013 Ms Star signed an employee declaration form acknowledging that she had read, understood and agreed to the contents of those terms.12 An updated Notice letter in the same form was issued to Ms Star on 31 August 2015 implementing a change to her flat rate of pay. The updated letter also states that the assignment length may vary and that the six months is a guide only.13

[13] In relation to Workpac’s employment practices generally, Ms Gray agreed that the Company maintains a pool of candidates that it can put forward for assignments and that those employees are effectively waiting for an offer of employment with a specific assignment. Ms Gray also agreed that the placement process involves Workpac putting forward or proposing a candidate to a relevant client. Ms Gray further agreed that the employment of employees in the pool starts when they start work on a particular assignment and that employees are required to submit a new application for each assignment. 14

[14] It is not in dispute that Ms Star commenced work at the Goonyella Riverside Mine on 23 October 2013. It is also not in dispute that prior to commencing work at the Goonyella Riverside Mine Ms Star had not performed any other work or assignments for WorkPac, although Ms Star had worked for other companies in the labour hire industry. Further, it is not in dispute that Ms Star worked a regular roster of full time hours at the Goonyella Riverside Mine on what is referred to as a lifestyle roster comprising fourteen days on and fourteen days off. Ms Star states that given that she was rostered in advance and had a regular pattern of work, she had an expectation of ongoing employment with WorkPac at the Goonyella Riverside Mine. Ms Star also states that she had been approved to take on the role of Trainer/Assessor at the Mine and was due to start in that role at or around 9 November 2017 when she worked her last shift at the Mine.

[15] Further, Ms Star states that her partner also works at the Goonyella Riverside Mine and is employed by BMA as a machinery operator in the same crew to which Ms Star is assigned. Having her partner work the same shifts is convenient to Ms Star from a personal and family perspective and this is an aspect of Ms Star’s employment with WorkPac at the Goonyella Riverside Mine that she valued greatly.

Cessation of Ms Star’s assignment at Goonyella Riverside Mine

[16] Ms Star’s evidence about ceasing to work at the Mine was that on Friday 10 November 2017 she a missed call from WorkPac and received an automated text message advising that Ms Gray would call her on Monday 13 November 2017. Ms Star tried unsuccessfully to contact Ms Gray over the weekend but was not able to speak to her until Monday 13 November 2017. During a telephone conversation on that date at around 9.30 am, Ms Gray told Ms Star that her services were no longer required by BMA and she was being demobilised. When Ms Star asked why this was occurring, Ms Gray said that she did not know the reason but that the demobilisation was not related to Ms Star’s performance. Ms Gray also said that she would email the termination letter to Ms Star. Ms Star said that she understood from this conversation that her employment was terminated. Ms Star also said that she had no ongoing employment or income from WorkPac after that point.

[17] Ms Star received a letter from WorkPac dated 13 November 2017 in the following terms:

“Dear Kim

RE: Finalisation of Assignment

WorkPac writes to you in relation to your current casual assignment with BMA BHP

BILLITON - GOONYELLA - COAL MINING. Unfortunately BMA BHP BILLITON - GOONYELLA - COAL MINING has advised WorkPac under our commercial contract that they wish to demobilise your position. This means that effective 13th November 2017 your casual assignment has come to end.

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 your skill set…” 15

[18] In cross examination, Ms Star did not accept the proposition that there was going to be ongoing employment with WorkPac, but conceded that Ms Gray did not tell her that she would not be offered any more positions, or that she would not work for WorkPac again. 16

[19] In her role as Recruitment Coordinator Ms Gray had responsibility for Ms Star as a WorkPac employee since 26 November 2014. Annexed to Ms Gray’s statement was an “Activity Log” containing records of communication and file notes from Ms Star’s WorkPac profile. Ms Gray said that prior to speaking to Ms Star on 13 November 2017, she received an email from Ms Amanda Radford, Administrator for WorkPac, which forwarded an email sent from Ms Raina Alexander, Resourcing Specialist for BMA at 12.12 pm on 10 November 2017, informing WorkPac that BMA no longer required Ms Star at the mine effective immediately. Ms Gray checked Ms Star’s roster to determine when she was not on shift, and attempted to call Ms Star that day. Ms Gray left a message that was sent as an automated message, but did not receive a call from Ms Star before she finished work for the day. Ms Gray also made a note of the 10 November 2017 telephone call in her activity log in which she described the attempted telephone call to Ms Star as being “to finalise employment”. Ms Gray said that she wished to clarify that this entry refers to finalisation of Ms Star’s employment on the Goonyella Assignment only and not her employment with WorkPac.

[20] Ms Gray succeeded in contacting Ms Star by telephone on Monday 13 November 2017 and made a file note of her conversation with Ms Star on that date which states:

“Called Kim to advise her position is no longer required at BMA. She was not surprised and stated this was clearly why her foreman was so nice to her last round. Advised we were not given any feedback however based on it not being performance related I have no problems submitting applications for other roles. Will update resume and come back to me.” 17

[21] Ms Gray disputes Ms Star’s recollection of the telephone conversation of 13 November 2017. Ms Gray said that she did not recall using the words “dismissal” or “termination” when talking to Ms Star on 13 November 2017, and that she has never used the word “demobilised” when talking with an employee regarding finalisation of an assignment. Ms Gray said that she had called Ms Star to inform her that her assignment with BMA had been finalised at BMA’s request, and that WorkPac would begin to source alternative assignments for Ms Star, as the reason for the BMA assignment being finalised was not performance related. Ms Gray said she did not inform Ms Star that her employment had been terminated, and that it was her understanding that this had not occurred.

[22] Ms Gray’s evidence is that there was a regular process for finalising the engagements of WorkPac employees, and that the finalisation letter sent to Ms Star on 13 November 2017 was a template letter that was generated and sent to employees upon finalisation of an assignment. In response to a question from Mr Kennedy in relation to the inclusion in that letter of the words “demobilise your position”, Ms Gray said that the letter was generated by the system, and that she did not have the capacity to change the wording of the letter. It was also put to Ms Gray that the letter also used the words “this termination is not performance related”, and that Ms Star had said Ms Gray had used those words during the telephone conversation of 13 November 2017, to which Ms Gray said “I don’t recall using those words.” 18

[23] Under cross examination, it was put to Ms Gray that at the time she had called Ms Star on 13 November 2017 she was acting under the impression that she was being asked to terminate Ms Star’s employment. Ms Gray did not agree with this proposition, and said that she had been asked to finalise the assignment. A chain of emails was tendered at the hearing on behalf of Ms Star, which included an email that Ms Gray had sent to WorkPac’s Industrial Relations team at 1:56pm on 10 November 2017, where Ms Gray had enquired; “Kim has been on site for 4 years. Just wanted to check I am right to call and advise no longer required.” An email reply sent the same day at 1:59pm from an “IR issues” email account stated to Ms Gray, “No you need to issue her with a finalisation of assignment letter and speak to her.”  19 Ms Gray was asked why she sought clarification from WorkPac’s Industrial Relations team if she was familiar with the regular process of finalising engagements. Ms Gray said that she was confident in the process, and was just seeking clarification and confirmation from the team.20

[24] Ms Gray also said a reference made in the activity log of the call to Ms Star on 13 November 2017 which read “to finalise employment” referred to the finalisation of Ms Star’s employment on the BMA assignment. 21 At the hearing Ms Gray said she did not agree with the proposition that the notes reflected an understanding at the time that she was bringing Ms Star’s employment with WorkPac to an end.22 Ms Gray maintained that she did not recall using the words “dismissal” or “termination” and in response to the proposition that this left open the possibility that she did use those words, Ms Gray said she did not recall doing so.23 Ms Gray agreed that Ms Star had been surprised at what Ms Gray told her during the telephone conversation on 13 November 2017.

[25] Ms Gray was taken to an activity log in relation to Ms Star’s employment with WorkPac appended to her statement and agreed that the log indicated that at 11.46 am on 16 November 2016 she inserted a comment as follows:

[26] Ms Gray was unable to explain the comment and maintained that the only correspondence received from BMA was that Ms Star was not required on site effective immediately. In her statement, Ms Gray said that during a number of general calls to Ms Star during the course of her assignment with BMA, Ms Star would begin the call with a using words to the effect of, “is this my don’t go back to work call?” and that Ms Gray would ask Ms Star regularly why she would expect to receive bad news when she received a call from WorkPac. Ms Gray said this gave her an impression that Ms Star wasn’t entirely happy in her assignment with BMA. Under cross examination Ms Gray conceded that there was no record in Ms Star’s activity log stating that Ms Star had indicated that she was unhappy with the BMA assignment, or that she had wanted to leave. 25

[27] Ms Haynes said that she is aware of each instance when BMA issues a direction to WorkPac that the services of a specific FTM or the position an FTM is performing during an assignment at the Mine is no longer required by BMA. It is Ms Hayne’s understanding that the terms of the commercial agreement between WorkPac and BMA for the supply of labour at the Mine permits BMA to issue a directive to WorkPac to remove an FTM at any time and for any reason. All directives to remove an FTM from the Mine are issued by email by a representative from BMA’s Workplace Acquisition and Enablement Team (WAE Team). The emails are addressed to Ms Haynes personally and to WorkPac’s generic “WorkPac Moranbah” email address, which is accessible by a number of different WorkPac employees, including Mr Lawson, who is Ms Haynes line manager.

[28] In Ms Haynes’ experience it is not unusual for BMA not to provide a reason or explanation for a directive to remove an FTM from the Mine. When Ms Haynes has received similar directives in the past she has sought feedback and an explanation from the WAE Team and on every occasion was advised that BMA is not required to provide a reason for such directive and could not provide additional information. As Ms Haynes has repeatedly received the same response from BMA’s WAE Team when seeking further information about the removal of an FTM from the Mine, Ms Haynes has ceased making these inquiries on behalf of WorkPac.

[29] In relation to Ms Star’s removal from the Goonyella Riverside Mine Site, Ms Haynes said that at 12.12 pm on Friday 10 November 2017, she received an email from a member of the WAE Team informing WorkPac that BMA no longer required Ms Star at the Mine, effective immediately. The email did not provide any reasons for the directive to remove Ms Star. Ms Haynes informed Mr Lawson during a telephone call that no reason had been given by BMA and that this was BMA’s usual approach.

[30] Under cross-examination Ms Haynes agreed that her understanding of the directive with respect to Ms Star was that Ms Star was no longer required effective the day the directive was given and that Ms Star was not required to perform any more work at the site that day. Ms Haynes agreed that she responded to the email but did not ask for reasons for Ms Star’s removal from site. Ms Haynes also agreed that it would have been a simple matter to ask for reasons and she chose not to do so. Further, Ms Haynes agreed that she did not ask BMA for a reason because she assumed that a reason would not be provided. Ms Haynes accepted that if a reason was provided it would have caused her to deal differently with the situation.

[31] Ms Haynes agreed that that there was ample opportunity to engage with BMA before taking steps to remove Ms Star from the site or to transfer Ms Star to another site. Ms Haynes also agreed that she was aware of clauses of the contract between BMA and WorkPac with respect to dealing with performance related concerns that BMA may have in relation to a WorkPac employee on a BMA site and agreed that she had not attempted to invoke the rights of WorkPac under that clause. Further, Ms Haynes agreed that she could have conducted an investigation to attempt to find out what had occurred to result in the request by BMA for Ms Star to be removed from the site.

[32] Mr Lawson gave evidence in relation to WorkPac’s process when it has received a direction from BMA to remove an FTM from a BMA site. According to Mr Lawson the process is as follows:

[33] Mr Lawson gave examples of cases where after receiving a direction from BMA to remove FTMs from a site, further information was sought from BMA which indicated that they had been involved in an altercation. In another case where BMA refused to provide an explanation for the direction WorkPac redeployed the FTM to a position with another contractor on a different site.

[34] Mr Lawson said that after receiving the email from BMA in relation to Ms Star no longer being required at the Goonyella Riverside Mine, he telephoned Ms Haynes (either on the afternoon of 10 November or the morning of 13 November) to inquire as to whether her contacts at the Mine had previously raised any concerns about Ms Star or provided an explanation for the direction to remove Ms Star from the Mine. Mr Lawson said that when he asked Ms Haynes: “Do we know why Kim was finished up” Ms Haynes responded stating: “As per usual, they’ve given us no reasons.”

[35] Under cross-examination Mr Lawson agreed that the process outlined by him for removal of an FTM from site contemplated WorkPac asking BMA for reasons and that this step should be taken on every occasion a directive is received. Mr Lawson also agreed that if the reason was provided, it may give WorkPac an opportunity to have a discussion about whether a request for removal of an FTM should be reconsidered by BMA and that WorkPac has asked clients to reconsider such decisions on multiple occasions. Mr Lawson also agreed that a direction under the contract between BMA and WorkPac to remove an FTM from site could only be given by one of the categories of people in clause 10.1(b)(iii) of the contract and that a direction only had to be complied with if given by one of those persons. Mr Lawson further agreed that clause 12 of the contract provided for a process for addressing the performance of FTMs where BMA was dissatisfied.

[36] Mr Lawson said under cross-examination that when he asked Ms Haynes if she knew why Ms Star had been finished up and was told that no reasons had been given, he thought that BMA had been asked for reasons and had refused to provide them. Mr Lawson also said that he would be surprised to hear that the BMA representative who communicated the instruction to remove Ms Star from site had not been asked for a reason and agreed that this was not consistent with WorkPac’s usual process.

Offers of other employment

[37] It is Ms Star’s evidence that prior to her alleged termination on 13 November 2018, there was no attempt by WorkPac to redeploy her to another position. Ms Star said she was told that she could apply for other jobs at other sites and that there was no guarantee in relation to those jobs. Further, Ms Star was not given any information about the specifics of such positions on 13 November 2017.

[38] WorkPac tendered a document outlining the alternative assignments offered to Ms Star. 26 The document was prepared by Ms Gray using the business records of WorkPac.27 In response to a question from the Commission Ms Gray said that the positions in the table were available at the time Ms Star’s Goonyella Riverside assignment ended and were discussed. Ms Gray was asked in cross examination whether the positions contained in the document were offered to Ms Star, and responded by stating that the positions were discussed. Ms Gray also agreed with the proposition that the positions were not a job offer, but were essentially an opportunity to investigate further.28

[39] Ms Gray said that she had asked Ms Star during the phone call of 13 November 2017 to provide an updated resume, as she had no issue in submitting Ms Star for other available roles. In response to a question in cross examination, Ms Gray said she did not know the reason for Ms Star being removed from site, and had no reason to believe that it was related to Ms Star’s work performance. Ms Gray conceded that the true position was that she had no knowledge of whether the reasons for BMA ending Ms Star’s Goonyella Riverside assignment was performance related or some other reason and that she was not aware of whether anyone from WorkPac had asked about this matter. 29

[40] Ms Gray agreed under cross-examination that she did not offer Ms Star a position at another site because Ms Star needed to submit a resume before other roles could be discussed. Ms Gray also agreed that the effect of what happened on 13 November 2017 was that Ms Star was put back into the pool of employees waiting for a new offer of employment and that in between Ms Star being removed from Goonyella Riverside and commencing employment under a new offer, Ms Star would not have had income from WorkPac.

[41] Mr Lawson maintained under cross-examination that when Ms Star was no longer required at Goonyella Riverside Mine she was still engaged by WorkPac but agreed that if Ms Star had been successful in obtaining another role she would be starting a new period of employment with a new client. Mr Lawson maintained that Ms Star was still engaged by WorkPac when she was removed from the Goonyella Riverside site and that the Company was looking for another role for Ms Star. Mr Lawson also agreed that if Ms Star was successful in obtaining another role through WorkPac it would be a new period of employment with a new client. Mr Lawson had the following exchange in cross-examination with Ms Star’s legal representative:

[42] Ms Roome said that on 15 November she made a telephone call to Ms Star to discuss a number of available assignments with WorkPac clients Thiess and HSE Mining and to see if Ms Star was interested in applying for any of these assignments. According to Ms Roome, during that conversation Ms Star made a statement to the following effect:

“I’m not sure that I actually want to work again in 2017. I’ll give you a call once I’ve decided I’m ready to begin looking for work again.”

Ms Star’s evidence in relation to reasons for dismissal

[43] Ms Star said that during the time she worked at Goonyella Riverside Mine she had not been the subject of any formal disciplinary processes. Ms Star said that she was involved in two discussions about interactions with work colleagues which did not result in any formal outcome. Ms Star also gave evidence about incidents which may have led to the request by BMA that she be removed from the Goonyella Riverside Mine site. Ms Star said that in or around January 2017, her partner handed in leave forms seeking that they have time off in December 2017 for the Christmas period. Ms Star’s partner later withdrew his leave application when he found that he was not rostered on for the Christmas period but Ms Star did not withdraw her application. On 6 November 2017, Ms Star’s partner asked a BMA supervisor whether Ms Star’s leave for December 2017 had been approved and was informed that it had not been approved.

[44] The supervisor told Ms Star’s partner that she should fill out a new leave form because the earlier form could not be located and had not been recorded. Ms Star filled out a new form and handed it back that day for processing. In October 2017 Ms Star was informed that at a toolbox meeting held while she was away doing a drug test, casual employees of contractors were told that it was compulsory that they work during the Christmas period if they were rostered on and had been required to write their names and the equipment they could operate on a sheet of paper handed around at the meeting. Ms Star said that no-one approached her to put her details on the piece of paper and that if this had occurred Ms Star would have advised that she had plans for Christmas. Ms Star also said that she was aware that BMA management would have been unhappy about her taking leave during the Christmas period as she was a casual employee of a contractor.

[45] On or about 9 November 2017 Ms Star was involved in what she described as a safety incident. Ms Star’s evidence was that she was working a night shift and had been allocated the task of collecting rejects and taking them to a different ramp for sheeting. It was dark and there were no lights on the ramp. After using lights from another grader to spot her work, Ms Star spoke to a BMA employee about the lack of light as she was concerned that using grader lights in that way did not accord with the relevant standard operating procedure (SOP). According to Ms Star, the employee got impatient and said that it was taking Ms Star too long to dump the load. Ms Star told him that she needed lights before she could dump the load. The BMA employee disagreed and told Ms Star that she did not need lights. Ms Star then attempted to call a BMA supervisor to request lights and did not receive a response. Ms Star then tried to call another BMA supervisor who called her back and said that he would bring her some lights. Another workmate also told Ms Star that he would bring her some lights.

[46] As a result, Ms Star had two sets of lights set up in the relevant area and it was well lit after that time. Ms Star did not go there again before she took her crib break. Later in the shift, Ms Star had a discussion with the shift supervisor which Ms Star said was to the following effect:

Ms Star: I may have come across angry on the radio but I was just very frustrated as the grader driver should have known what the SOP were for the task the grader was performing.

Supervisor: I thought it was ok to do it the way you were doing it without the lights because the grader was spotting you and the ramp was 60 metres wide.

[47] While Ms Star was talking to the supervisor, the Open Cut Examiner Mr Hazeldine arrived and stated that he had already told the grader driver that he needed lights and signage in order to safely discharge the load. The Open Cut Examiner also told Ms Star that she had been “assertive” during her earlier conversation about the issue on the two way radio. Ms Star said that she had been firm during the discussion because she was concerned about not breaching the SOP and maintained that her level of firmness was not inappropriate in the circumstances. Ms Star said that she then went to do a drug test and had her crib before getting back on a machine and finishing her shift at 6.40 am without any further incident. Ms Star did not go back to the ramp in question because she was operating a different truck after her crib break. Ms Star also said that she thought that the lighting incident was resolved on that basis and did not expect to hear anything further about it.

[48] Ms Star also tendered documentation received from BMA in response to an order to produce issued on her behalf. That documentation comprised a chain of emails commencing with an email dated 10 November 2017 from Brent Gee of BMA to Rod Maunder, a supervisor named by Ms Star as having been involved in discussions with her about lighting on 10 November, in which it is asserted that a number of employees had not followed crib times or assignments the previous night, including Ms Star who is said to have: “well exceeded second crib time”. The email requests that Mr Maunder make it a priority to chat to each operator who has not followed process. The documentation also indicates that another operator had refused to dump a load and that many operators were over their time in first and second crib period.

[49] Mr Thomas was working the night shift on 9 November 2016 and gave evidence that he overheard a discussion on the radio between Ms Star and a grader driver in which the grader driver was telling Ms Star to dump a load and Ms Star stated that there was not enough light for her to do so and that she was taking the load back to where she got it from. After hearing this discussion, Mr Thomas had a crib break with Ms Star who was upset and stated that she felt like a bitch for refusing to tip and Mr Thomas reassured her that she required sufficient lighting to tip her load. Later Mr Thomas observed that the ramp where Ms Star had refused to dump her load was “lit up brighter than Suncorp Stadium.” 31 Mr Schmidt also gave evidence about working on the night shift on 9 November 2016 and overhearing a discussion between Ms Star and a grader driver during which Ms Star told the grader driver that she was not going to dump where the lights of his grader were pointing and wanted lighting in the area of the ramp.

[50] Mr Hazeldine said that he had a discussion with Ms Star during a crib break and confirmed that Ms Star had followed standard operating procedure in refusing to dump her load in an area that was not properly lit. Mr Thomas, Mr Schmidt and Mr Hazeldine said that since Ms Star’s dismissal other employees have been engaged to undertake the same or substantially the same work and that these employees are employed by WorkPac and another labour hire Company, One Key.

Events after the cessation of Ms Star’s Goonyella Riverside assignment

[51] Ms Star obtained employment as a trainer/assessor with Thiess at Caval Ridge Mine which is a BMA mine site and commenced in that employment on 27 November 2017. The yearly salary for the new role is $90,500 per annum or $27.92 per hour as a base rate. Ms Star said that the role is permanent and she receives annual leave and sick leave and that the roster is seven days off and seven days on, which is better than the lifestyle roster she worked at Goonyella Riverside. Ms Star has received two text messages from WorkPac in relation to other roles since she started at Caval Ridge. One message was in relation to a trainer/assessor role. Ms Star said that she responded expressing interest in that role but did not hear back from WorkPac.

[52] In a witness statement in reply, Ms Star said that she originally applied for a job with Thiess in July 2017 and was offered a job by that Company in October 2017. After having a discussion with her partner, Ms Star refused the offer on the basis that questions about the living away from home allowance and travel to and from the site were not answered by Thiess and her partner did not want her to take the job because they would have to buy another car and would hardly see each other. After Ms Star’s dismissal by WorkPac she was contacted by Thiess on 15 or 16 November and asked whether she still wanted the job at Caval Ridge. Ms Star maintained that she did not contact Thiess and that Thiess initiated the telephone call to her.

[53] According to Ms Star, there has been a significant financial impact as the result of the termination of her employment by WorkPac. Ms Star and her partner had purchased a house before the termination of her employment based on her income which has made it difficult to meet mortgage payments and they have had to purchase a car because they are both driving to different worksites, resulting in increased travel costs. Ms Star rarely sees her partner and sees him a few times a week for short periods and sometimes does not see him for two weeks. Ms Star states that this has put a bit of strain on their relationship.

[54] Under cross-examination Ms Star agreed that her role with Thiess is higher paid than her previous role with WorkPac, is at the higher trainer/assessor level and that this role is located closer to where she lives. In response to the proposition that she had attempted to leave Goonyella Riverside Mine in 2015 to work at Blackwater, Ms Star said that she could not recall why this was the case but she may have had personal reasons and that these can change. Ms Star was also shown her contract of employment with Thiess and agreed that it contains the following statement:

[55] Ms Star agreed that at the time she had a conversation with Ms Roome on 15 November 2017 she was considering her options and was discussing these with her partner, including whether to seek further employment at that point or wait until after Christmas given their leave plans. Ms Star also agreed that after 15 November 2017 she was contacted by WorkPac about job options but this was by text message and she did not have conversations about those roles. Ms Star also maintained that the text messages simply stated that there was a particular job available but not where the job was located or the pay rate and that if Ms Star was interested she should make contact with WorkPac. Ms Star said that she replied to only one of the text messages and did not receive further contact from WorkPac in relation to her response.

CONSIDERATION

Whether Ms Star was dismissed - s. 386(1)?

[56] By virtue of s. 386(1) of the Act a person is dismissed if the person’s employment is terminated on the employer’s initiative. In Mohazeb v Dick Smith Electronics 33 the court held that an important feature of a similar phrase “terminated at the initiative of the employer” is that the action of the employer is the principal contributing factor which leads to the termination of the employment relationship.

[57] WorkPac submits that on 13 November 2017 when Ms Star’s assignment at Goonyella Riverside Mine ended, there was an “underpinning employment contract” of the kind identified by a Full Bench of the Commission in Saeid Khayam v Navitas English Pty Ltd 34 which only came to an end on 15 November 2017 when Ms Star expressed her disinterest in working in other roles for WorkPac and thereby ended the employment relationship. I do not accept this submission or that the ten factors identified by Mr Procter on behalf of WorkPac establish this contention.

[58] Navitas dealt with the issue of whether an employee engaged on a series of sequential time limited contracts, was dismissed by the employer when a contract was not renewed. The present case does not involve a time limited contract. However, Navitas reinforces that the analysis of whether there has been a termination at the initiative of the employer for the purposes of s. 387(1)(a) of the Act is to be conducted by reference to the termination of the employment relationship and not by reference to the termination of the contract of employment operative immediately before the cessation of employment. The Full Bench in Navitas also reinforced that the expression “termination at the initiative of the employer” is a reference to a termination that is brought about by an employer and which is not agreed to by the employee. In circumstances where the employment relationship is not left voluntarily by the employee, the focus of the inquiry is whether an action on the part of the employer was the principal contributing factor which results directly or consequentially, in the termination of the employment.

[59] In the present case Ms Star was not employed under a time limited contract. I do not accept that the effect of the terms and conditions document was such that the employment relationship remained on foot after Ms Star’s assignment at the Goonyella Riverside Mine ended. The terms and conditions document applies to the employment of employees of WorkPac with respect to an engagement with any of WorkPac’s clients and for all assignments undertaken on behalf of WorkPac by employees. The terms and conditions document is to be read in conjunction with any notice of offer of casual or maximum term employment. The terms and conditions document makes it clear that employment with WorkPac is on an assignment by assignment basis with each assignment representing a discrete period of employment.

[60] The terms and conditions document considered in isolation does not establish an employment relationship independent of employees being offered and accepting an assignment at a particular location or site. Rather it is a contract in the form of a standing or framework agreement under which an employment relationship or a series of employment relationships may be entered into on particular sites or at particular locations, on either a casual or a maximum term basis. Each assignment which commences a new employment relationship is subject to an offer by WorkPac and acceptance by the employee.

[61] Further, the employment relationship for each assignment is established by a letter of offer. When the assignment ends, so does the employment relationship. The terms and conditions document applies to each assignment offered to the employee and does not operate independently of the employment relationship formed when an employee is offered and accepts a particular assignment. The terms and conditions document does not guarantee that a further assignment will be offered creating a new employment relationship when an earlier assignment ends. Rather the terms and conditions document specifically provides that each assignment is a separate employment relationship.

[62] In the present case, an employment relationship between Ms Star and WorkPac came into existence when Ms Star was assigned to work at the Goonyella Riverside Mine. It is clear from the evidence that the employment relationship between Ms Star and WorkPac in respect of her assignment at the Goonyella Riverside Mine ended on 13 November 2017 when Ms Star was informed that her services were no longer required at the Goonyella Riverside Mine. This was confirmed in a letter dated 13 November 2017, which notified Ms Star that her casual assignment with North Goonyella had come to an end and that the “termination” was not performance related. Given that the reference to “performance” can only have applied to Ms Star’s performance, it follows that the letter was communicating that the employment relationship had terminated.

[63] The activity log of the call to Ms Star from Ms Gray, made on 13 November 2017 also indicates that the purpose of the call was to finalise employment. That there had been a termination of Ms Star’s employment is further supported by the entry made by Ms Gray in the activity log on 16 November 2016 which states Ms Star was terminated from her job order as an Operator Coal Mining and that the reason given by the client was that Ms Star was unsuitable, which had a negative rating. Ms Gray could provide no explanation for making this entry in the activity log and I conclude that it indicates the true state of affairs which was that Ms Star’s employment at the Goonyella Mine had been terminated.

[64] The ten factors referred to by Mr Procter for WorkPac do not establish that the employment relationship between Ms Star and WorkPac continued to operate after 13 November 2017 or that the relationship ended other than at the initiative of WorkPac. First, the contact between the Respondent and Ms Star up to 15 November 2017 does not establish that Ms Star was still employed. At best that contact was an attempt to find an alternative assignment for Ms Star which had it been accepted by Ms Star, would have brought a new employment relationship into effect. Second, the letter of 13 November 2017 does not support the contention by WorkPac that the employment relationship remained on foot after that date. In the context of the terms and conditions document and an employment relationship which was assignment based, a letter terminating the assignment had the effect of terminating the employment relationship. Third, the Notices of Offer to Ms Star tendered by Ms Gray do not demonstrate that the relationship was unchanged from assignment to assignment. To the contrary, the Notices of Offer were for successive periods and set out working hours and wage rates. The Notices confirm that Ms Star has read and understood the Terms and Conditions document. The Notices of Offer do not establish the Terms and Conditions Document as an underpinning employment contract. For the reasons set out above, the Terms and Conditions document did not operate in this manner.

[65] Fourth, the terms and conditions document is not an underpinning employment contract and does not underpin the employment relationship such that it can subsist without the employee being engaged on a particular assignment. Fifth, Ms Star’s understanding of the basis on which she was engaged at the Mine and the contract between WorkPac and BMA for the supply of labour, or Ms Star’s general understanding of the nature of employment with companies in the labour hire industry, is not determinative of the question of whether Ms Star’s employment was terminated at the initiative of WorkPac when her assignment ended. The telephone discussions between Ms Star and WorkPac representatives after her assignment at the Goonyella Riverside Mine ended – the sixth and seventh facts – do not establish that an employment relationship remained on foot. These discussions at best related to assignments which may or may not have been offered to Ms Star in the future which if accepted would have brought a further but separate employment relationship into effect. This is so regardless of what Ms Star believed to be the case as a result of those discussions. Eight, the fact that Ms Star was asked on 13 November 2017 to update her resume and submit it for consideration by other WorkPac clients does not establish that an employment relationship continued past that date.

[66] Ninth, contrary to the submission for WorkPac, the change in Ms Star’s status in WorkPac’s employment register after 16 November 2017 does not support the contention that Ms Star’s employment ended by virtue of her expressing disinterest in another assignment. To the contrary, the employment register entry on 16 November 2017 clearly states that Ms Star has been terminated from her role and that the reason given by BMA is that Ms Star was unsuitable, which carries a negative rating. As previously noted, Ms Gray was unable to explain this entry and in my view it clearly indicates that Ms Star was dismissed.

[67] The tenth factor is said to be that Ms Star accepted a better paying role at Caval Ridge Mine that was closer to home and had applied for that role prior to her assignment at Goonyella Riverside ending. However, Ms Star’s evidence is that she had applied for this role some time ago and was no longer interested in it at the point her Goonyella Riverside assignment ended, due to a conscious decision that she preferred the Goonyella Riverside job because it suited her personal circumstances and in particular, the alignment with her partner’s work cycle. Ms Star also maintained that she had only revisited the position at the Caval Ridge Mine after her Goonyella Riverside assignment ended. Ms Star’s explanation of this matter, which was not challenged in cross-examination, makes it equally probable that it is not indicative of a decision by Ms Star to end her employment with WorkPac.

[68] The business model of labour hire companies is that they employ persons (usually on a casual basis) and place them in the businesses of other companies (client companies) with which the labour company has a contractual relationship for the supply of labour. In some cases, the labour hire employees may work intermittently and move between a number of client companies. In other cases the labour hire employee may be assigned to a client company for a specified period or task – to replace an absent employee of the client company or for a particular project. There are also cases where labour hire employees are placed with client companies for lengthy periods of time in circumstances where they integrate with the workforce of the client company and are under the direction of its managers and supervisors.

[69] I accept that in some cases the employment relationship between the labour hire company and its employees may subsist in periods where the employee is not placed at a client company. However, whether this is so depends on the contractual arrangements and the factual matrix in which they operate. In the present case, the contractual arrangements between Ms Star and WorkPac do not establish that there was a subsisting employment relationship which existed independently from a particular assignment or the placement of Ms Star at the Goonyella Riverside Mine site. The Terms and Conditions document read in conjunction with the Notice of offer in relation to the role make it clear that employment is on an assignment by assignment basis and concludes at the end of each assignment. That there were two notices of offer does not change this fact as the second notice simply effected a change in the rate of pay and did not indicate a further employment relationship.

[70] The factual matrix in the present case also supports this finding. This was not a case of an employee moving around a variety of sites for relatively short periods or having an expectation of being deployed in this way. Ms Star was employed by WorkPac to work at a particular site and only at that site. Ms Star’s offer of employment related only to one site and the terms on which employment was offered make clear that when the assignment ended so would the employment. Ms Star worked at the site for over four years on a regular roster on a full time basis, notwithstanding that she was engaged as a casual employee. Ms Star’s employment continued for over four years, notwithstanding that each of the two notices of offer received by Ms Star was for a six month assignment, which could vary.

[71] For these reasons I am satisfied and find that Ms Star was dismissed at the initiative of WorkPac when her Goonyella Riverside assignment was brought to an end on 13 November 2017. I turn now to consider whether the dismissal was unfair on the basis that it was harsh, unjust or unreasonable taking into account the matters in s. 387 of the Act.

Was there a valid reason for Ms Star’s dismissal – s. 387(a)

[72] The first matter I am required to take into account in deciding whether Ms Star’s dismissal was unfair is whether there was a valid reason for Ms Star’s dismissal related to her capacity or conduct (including its effect on the safety and welfare of other employees). The meaning of the term “valid” for the purposes of this consideration is well settled. A valid reason for dismissal is one that is “sound, defensible or well founded” and not “capricious, fanciful, spiteful or prejudiced.”35 The reason for dismissal must also be defensible or justifiable on an objective analysis of the relevant facts,36 and the validity is judged by reference to the Tribunal’s assessment of the factual circumstances as to what the employee is capable of doing or has done.37

[73] Section 387(a) of the Act does not require the Commission to take into account the validity of any reason for dismissal and confines the consideration to whether there are valid reasons related to the capacity and conduct of the dismissed employee. As Moore J of the Federal Court said in Edwards v Giudice 38 in relation to a previous provision of the Act which was relevantly identical:

[74] In my view the analysis in Edwards v Guidice is also applicable in circumstances where the employee asserts that a dismissal is related to a reason other than that asserted by the employer. Previous iterations of s. 387(a) also required the Commission to take into account whether there was a valid reason for dismissal based on the employer’s operational requirements. While this consideration is no longer found in s 387(a), the validity of reasons for dismissal which do not relate to the capacity or conduct of an employee may also be taken into account as a relevant matter pursuant to s. 387(h).

[75] In a case of dismissal as defined in s. 386 of the Act, the employer is the moving or initiating party and the primary source of information about the reason for the dismissal. The employer bears the onus of satisfying the Commission that there was a valid reason for dismissal related to the capacity or conduct of the employee. 39 The existence or not of a valid reason for dismissal based on the capacity or conduct of the dismissed employee is one factor to be considered in deciding whether a dismissal is unfair and is not determinative of whether the dismissal is unfair. That there are other reasons which do not relate to the capacity or conduct of the employee and whether those reasons are valid, is a matter which can be taken into account under s. 387(h) where the Commission considers it relevant.

[76] In considering whether there was a valid reason for the dismissal of an employee for the purposes of s. 387(a) the Commission is not confined to the reason given by the employer. 40 It is axiomatic that in taking into account whether there was a valid reason for dismissal related to capacity or conduct as the Commission is required by s. 387(a) to do, it is first necessary to identify the actual reason or reasons for the dismissal. Absent the Commission forming a view about the reason for dismissal, it is difficult to see how the Commission could take into account whether there was a valid reason for dismissal related to the conduct or capacity of the dismissed employee. Identification of the reason or reasons for a dismissal and whether it relates to capacity or conduct of the employee is also necessary in order for the Commission to take into account other matters in order to determine whether a dismissal is unfair, including s. 387(b) and s. 387(c).

[77] There are cases where the reason for dismissal is not in dispute and subject to being satisfied that the reasons given by the employer are the actual reasons, the inquiry under s. 387(a) is primarily focused on whether the reason was valid if it related to conduct or capacity. There are also cases where the reason for dismissal is in dispute or where the dismissed employee asserts there is an ulterior motive for the dismissal and that it was for reasons other than asserted by the employer. The fact that there was no reason for dismissal based on conduct or capacity or unsatisfactory performance may also be relevant in the overall consideration of whether a dismissal was unfair. As previously noted, a reason for dismissal that is not related to conduct or capacity of the dismissed employee may also be taken into account as a relevant matter for the purposes of s. 387(h) and weighed in the overall consideration of whether the dismissal in question was unfair.

[78] In the present case, WorkPac asserts that the reason for dismissal (if Ms Star was dismissed) was that it had become apparent that the Company could not reassign Ms Star to another role. Accordingly, WorkPac contends that it was placed in a similar position to that of the employer in Donald Pettifer v MODEC Management Services Pty Ltd. 41 That case involved a labour hire employee who was not permitted to work at a particular site because of the actions of a third party host employer. The facts in Pettifer as set out in the Decision of the Full Bench were that the dismissed employee was involved in a “near miss” safety incident and as a result, the host employer exercised its rights under the contract with the labour hire company to direct the labour hire company to remove Mr Pettifer from its site. The labour hire company while not agreeing that Mr Pettifer’s conduct justified the disciplinary action imposed by the host employer, nevertheless removed Mr Pettifer from the site. At first instance the Commission found that Mr Pettifer’s dismissal was not related to his capacity or conduct and that the question of whether there was a valid reason for the dismissal did not arise on the facts of the case.

[79] On appeal, Mr Pettifer asserted that the reason for his dismissal was the near miss incident and that the dismissal was related to his capacity or conduct because his dismissal occurred as a result of the host company forming the view that his conduct demonstrated unacceptable safety behaviours. Mr Pettifer also asserted that this could not be a valid reason for dismissal because his employer (the labour hire company) made no finding of wrongdoing on his part and relied solely on the contractual provision which allowed the host company to exclude him from the workplace. Mr Pettifer contended that the Commission at first instance erred by finding that the question of whether there was a valid reason for the termination did not arise on the facts of the case and that the Commission failed to take into account the mandatory consideration that there was no valid reason for the termination of Mr Pettifer’s employment.

[80] The Full Bench found that Mr Pettifer was not dismissed for reasons related to his conduct and that the reason for Mr Pettifer’s dismissal was that Mr Pettifer did not have the capacity to perform the inherent requirements of his job. The Full Bench held that:

[81] The Full Bench in Pettifer went on to consider that the contract between Mr Pettifer’s employer and the host company entitled the host company to direct that any person employed in connection with work under the contract be removed from the site in circumstances where the involvement of that person was considered by the host company not to be in the best interests of the Project. The contract further provided that the relevant person could not be employed elsewhere on the site or on work connected with the project, except with the prior written approval of the host company.

[82] The Full Bench in Pettifer considered that the facts in that case could be distinguished from those in Kool v Adecco 43 where the terms of the contract between the labour hire company and the client in that case were not in evidence and where it was found that the labour hire company which employed the dismissed employee had failed to explore redeployment options. The Full Bench in Pettifer found that while the host company had concerns over Mr Pettifer’s conduct and elected to exercise its contractual right to direct the labour hire company to remove him from the relevant site this was not the reason for the dismissal. The dismissal was found to have occurred because Mr Pettifer did not have the capacity to perform the duties he was employed to perform and could not be redeployed elsewhere by the labour hire company. The Full Bench also noted that the labour hire company retained Mr Pettifer in employment while it explored redeployment options and only provided him with notice of termination of his employment when all avenues for redeployment had been exhausted. It is also apparent that the labour hire company in that case considered the conduct which led to the directive by the host employer to remove Mr Pettifer from the site and formed its own view about the conduct and whether it justified termination of employment or the removal of Mr Pettifer from the site.

[83] The Full Bench Decision in Pettifer is not authority for the proposition that in every case where a host employer with a contractual right to do so, directs a labour hire company to remove a particular employee from a site the host company controls or operates, that the dismissal will be for a valid reason on the grounds of incapacity of the employee to perform the inherent requirements of his or her position. Pettifer confirms that where a labour hire employee is removed from the site of a host company resulting in that employee being dismissed, the Commission cannot disregard s. 387(a) of the Act and should examine all of the facts surrounding the instruction to remove the particular employee including taking into account whether there is a valid reason for the dismissal relating to the capacity or conduct of the employee.

[84] The facts in Pettifer are also distinguishable from those in the present case. Firstly the contract between WorkPac and BMA does not contain a provision in the terms or even substantially the terms of the contractual provision in Pettifer dealing with the removal of employees. I accept that the contract in the present case requires that WorkPac comply with lawful directions and orders and that such a direction or order could include the removal of a particular employee from the Goonyella Riverside Mine site. However the contract in the present case also contains a provision setting out a process for dealing with circumstances where BMA is dissatisfied with the performance of the services by any of WorkPac’s personnel. That contractual term – clause 12.1 – provides that discussions may be held to give WorkPac a reasonable opportunity to remedy any issue which has led to dissatisfaction on the part of BMA. The term further provides that if BMA remains dissatisfied on a reasonable basis, written notice may be given requiring the removal of WorkPac personnel from the site.

[85] Further, the evidence of Ms Star about events during the night shift worked by Ms Star on 9 November 2017 and the documentary evidence in the form of BMA records of events on the night shift on that date, establish the basis for an inference to be drawn that the reason for BMA’s directive that Ms Star be removed from the site was related to her conduct on that shift. The uncontradicted evidence of Ms Star, Mr Hazeldine and Mr Thomas is that there was an incident during the night shift on 9 November 2017 in which Ms Star refused to dump a load because of inadequate lighting and that Ms Star had a discussion about this with a grader driver who urged her to use the lights of his grader to illuminate the area where she was required to dump her load. Ms Star refused to comply with the request of the grader driver and was concerned enough about the discussion to ask Mr Hazeldine (the OCE) whether she had been too assertive about the matter.

[86] The documentary records of the shift tendered by Ms Star also indicate that a view was formed by BMA management that Ms Star took a crib break that exceeded the allowed duration and that this was a failure on her part (and that of others who also exceeded their allocated crib times) to “follow process”. It is more than coincidental that the email from BMA stating that Ms Star was no longer required at the Mine effective immediately was sent to WorkPac on 10 November 2017 at or around 9.38 pm. Ms Star also called into question whether her removal from the site was related to her intention to seek leave for the Christmas period.

[87] WorkPac has not called evidence sufficient to counter the inference that these matters were not related to the directive from BMA to remove Ms Star from the Goonyella Riverside Mine site. Immediately upon receiving the directive from BMA Ms Gray on behalf of WorkPac attempted to contact Ms Star and upon making contact, terminated Ms Star’s employment. For reasons set out above, the termination of Ms Star’s employment was effected on 13 November 2017, before redeployment was considered.

[88] Based on the facts in this case, I have reached the following conclusion in relation to the matters I am required to take into account under s. 387(a) of the Act. It is more probable than not that Ms Star’s dismissal related to a conduct issue. I have reached this conclusion on the basis that Ms Star was dismissed on 13 November 2017 as a result of a directive given by BMA on 10 November 2017 that WorkPac remove Ms Star from the Goonyella Riverside Mine site. The directive was given immediately after an incident or incidents on 9 November 2017 which related to the conduct of Ms Star during a night shift on that date. Ms Star was dismissed before any attempts were made by WorkPac to redeploy her and I do not accept that any inability to redeploy Ms Star was the reason for her dismissal.

[89] After being informed that BMA required Ms Star to be removed from the Goonyella Riverside Mine site, WorkPac managers made no attempt to ascertain the reasons for this directive. In failing to do this, WorkPac managers did not act consistently with the Company’s usual practices as was conceded by Mr Lawson. Further, WorkPac did not seek to ascertain whether clause 12.1 of the contract with BMA applied. It is not to the point that BMA had previously refused to provide a reason for issuing directives to remove staff from site. Failure on the part of WorkPac managers to seek clarification of the reason for the directive has resulted in a situation where WorkPac cannot rebut the inference raised by Ms Star’s evidence that the dismissal was related to her conduct. Consequently on the balance of probabilities the reason for Ms Star’s dismissal related to her conduct, and I do not accept that this was a valid reason.

[90] This is not a case where there is evidence of a reduction in numbers of employees with the qualifications held by Ms Star or some other operational reason for the directive to remove Ms Star from the site. To the contrary, evidence from witnesses on behalf of Ms Star establishes that additional labour hire employees employed by WorkPac and another labour hire company were mobilised onto the site after Ms Star’s dismissal. If the reason for dismissal was incapacity of the kind considered in Pettifer, in circumstances where WorkPac took no steps to clarify the basis of BMA’s directive, I do not accept that incapacity was a valid reason for dismissal.

[91] Ms Star has placed evidence before the Commission sufficient to support an inference that the dismissal related to conduct. WorkPac cannot assert that this is not the case in the absence of evidence of another reason or where the evidence relied on by WorkPac does not establish the reason advanced by the company. This is particularly so when the evidence of witnesses for WorkPac establishes that the failure to seek clarification of the reason for the directive to remove Ms Star from the Goonyella Riverside Mine Site was a conscious decision taken by managers who dealt with the matter.

Whether Ms Star was notified of that reason – s. 387(b)

[92] The use of the term “that reason” in s. 387(b) of the Act refers to a reason or reasons for dismissal related to capacity or conduct as provided in s. 387 of the Act. Ms Star was not notified of any reason related to her conduct, for the directive that she be removed from the Goonyella Riverside Mine, in circumstances where that removal resulted in her dismissal.

Whether Ms Star was given an opportunity to respond to any reason related to her capacity or conduct – s. 387(c)

[93] Ms Star was not given an opportunity to respond to any reason for dismissal related to her capacity or conduct in circumstances where it is probable that there was such a reason.

Any unreasonable refusal by WorkPac to allow Ms Star to have a support person – s. 387(d)

[94] There was no refusal by WorkPac to allow Ms Star to have a support person.

Whether Ms Star was warned about any unsatisfactory performance – s. 387(e)

[95] Ms Star was not informed of any unsatisfactory performance in circumstances where it is probable that a view that Ms Star’s performance was unsatisfactory had been formed by BMA before giving WorkPac the direction to remove Ms Star from site, resulting in her dismissal.

Impact the size of the employer’s enterprise would likely have on procedures followed in effecting the dismissal – s. 387(f)

[96] WorkPac is a large employer and there is no evidence that the size of the Company impacted or would likely have impacted on the procedures followed in effecting Ms Star’s dismissal.

The degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal – s. 387(g)

[97] WorkPac has dedicated human resource management specialists and expertise and there is no evidence that the size of the Company impacted or would likely have impacted on the procedures followed in effecting Ms Star’s dismissal.

Other relevant matters – s. 387(h)

[98] I consider that the following matters are also relevant to consideration of whether Ms Star’s dismissal was unfair. As a Full Bench observed in Pettifer labour hire arrangements in which a host employer has the right to exclude a labour hire employee from its workplace, are becoming a common part of the employment landscape in Australia. 44 The reality for labour hire companies is that they frequently have little if any control over the workplaces at which their employees are placed. Notwithstanding that I have found that the cessation of Ms Star’s assignment at the Goonyella Riverside Mine constituted a dismissal, and that her assignment at the Mine was for a lengthy period during which she worked a regular roster, it remains the case that Ms Star was a casual employee working in the labour hire industry. The basis of Ms Star’s employment with WorkPac was that it was constituted by a series of engagements. While Ms Star may have a remedy if she is unfairly dismissed, she could also have been dismissed at any time without notice, if for example, BMA chose to restructure or reorganise the manner in which work is performed at the Mine and demobilise all or part of its contract workforce as a result. Under the contract between WorkPac and BMA, BMA has the right to seek the removal of a WorkPac employee from its site on the grounds of dissatisfaction with performance or for other reasons. If BMA exercises that right in a manner that is unlawful or unfair, then a remedy may lie against BMA under other provisions of the Act.

[99] However, the contractual relationship between a labour hire company and a host employer cannot be used to defeat the rights of a dismissed employee seeking a remedy for unfair dismissal. Labour hire companies cannot use such contractual relationships to abrogate their responsibilities to treat employees fairly. If actions and the consequences for an employee would be found to be unfair if carried out by the labour hire company directly, they do not automatically cease to be unfair because they are carried out by a third party to the employment relationship. If the Commission considers that a dismissal is unfair in all of the circumstances, it can be no defence that the employer was complying with the directions of another entity in effecting the dismissal. 45

[100] Ms Star has not been advised of any substantive reason for her removal from the Goonyella Riverside Mine site, in circumstances where the direction that she be removed resulted in the termination of her employment. An employee who is informed that he or she is no longer required in a workplace, will usually request to be provided with a reason for such a decision. Where that employee is protected from unfair dismissal and makes an application for an unfair dismissal remedy, the failure of the employer to give a reason would be a matter going to the fairness of the dismissal. This does not cease to be the case simply because a third party has directed that the employee be removed even in circumstances where the third party has the right to issue such a direction.

[101] If the dismissal in the present case was not related to Ms Star’s capacity or conduct, then WorkPac did not advance another reason valid or otherwise to explain the decision to remove her from the Goonyella Riverside Mine Site. Labour hire employees with the same or substantially the same skills and qualifications as those held by Ms Star were employed after Ms Star’s dismissal. Ms Star had worked for WorkPac at that site for over four years and had not worked for the Company at any other site. Ms Star worked full time hours in accordance with a roster, albeit she was employed on a casual basis. The job suited Ms Star’s personal circumstances as it allowed her to work the same roster as her partner. But for an apparently arbitrary instruction that WorkPac remove Ms Star from the Goonyella Riverside Mine site, Ms Star would have remained there for the foreseeable future.

[102] WorkPac responded to the direction to remove Ms Star from the Goonyella Riverside Mine site by taking immediate action to terminate her employment. There was no discussion with Ms Star about alternative roles prior to the termination of her employment. There was also no discussion with Ms Star about her views in relation to the possible reasons for the directive of BMA to remove her from the site. Had such a discussion occurred, Ms Star may have informed WorkPac’s management of the issues on the night shift on 9 November 2017 so that some attempt could have been made to ascertain whether this was a reason for BMA’s directive to remove Ms Star from the Mine site.

[103] The failure on the part of WorkPac’s managers to seek further information from BMA about the reason for the directive to remove Ms Star from the Mine site was contrary to its own usual procedure. That failure was significant given that the contract between WorkPac and BMA has a specific provision in relation to the removal of employees for the reason that BMA is dissatisfied with their performance, which gave WorkPac some rights to debate the issue of whether Ms Star’s performance was such that she should be removed from the site. While Ms Star is a casual employee who may not have been entitled to payment while such discussions took place, had the matter been better handled Ms Star may have been able to be sent to another site temporarily while the issue which led to the directive from BMA that she be removed from the Goonyella Riverside Mine was explored.

[104] It is also the case that Ms Star has obtained another position at Caval Ridge Mine which is also operated by BMA. This indicates that there is at least some prospect that any issue with Ms Star’s conduct or work performance on the night shift on 9 November 2017 might have been addressed to the satisfaction of BMA if WorkPac’s managers had made some attempt in this regard.

Conclusion in relation to whether Ms Star’s dismissal was unfair

[105] On balance, taking into account the matters in s. 387 of the Act, I am satisfied that Ms Star’s dismissal was unfair. Ms Star’s dismissal was brought about by the response of WorkPac to the directive from BMA to remove her from the Goonyella Riverside Mine site. 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 BMA managers about that conduct. As a result, I am satisfied that Ms Star’s dismissal related to conduct. 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 BMA requiring the removal of a longstanding labour hire employee from the Goonyella Riverside Mine site.

[106] The dismissal was also unfair on the basis that there was no discussion with Ms Star about the decision to remove her from the site and the consequential termination of her employment prior to the termination being effected. The BMA directive was accepted by WorkPac managers as a fait accompli and there was no attempt made to discuss the directive with a relevant manager of BMA or to confirm the reason for the directive or whether the contractual provisions between BMA and WorkPac with respect to unsatisfactory performance by WorkPac personnel applied.

[107] The dismissal of Ms Star was harsh because of its consequences for her personal and economic situation and because there was no conduct sufficient to justify her dismissal. The dismissal was also unreasonable because it was decided on inferences which were not reasonably open to WorkPac on the basis of the information it had or which it could reasonably have obtained from BMA.

REMEDY

[108] Given that I have found that Ms Star’s dismissal was unfair, it is necessary to consider the question of remedy. As required by s.390 of the Act, I am satisfied that Ms Star was protected from unfair dismissal and that she has been unfairly dismissed. I am also of the view that Ms Star should have a remedy for her unfair dismissal. Ms Star seeks reinstatement.

[109] Reinstatement is the primary remedy for unfair dismissal. Compensation can only be awarded where the Commission is satisfied that reinstatement is inappropriate. In circumstances where there is no reason advanced for the directive by BMA that Ms Star be removed from the Goonyella Riverside Mine and she has obtained another employment at another mine also operated by BMA, there is no apparent reason why Ms Star could not be reinstated to her previous position at Goonyella Riverside Mine, notwithstanding that Ms Star may have been replaced by another casual employee of WorkPac. No evidence was called by WorkPac about the appropriateness of reinstatement and the submission in relation to this matter were limited to the assertion that WorkPac has no right to direct BMA to accept Ms Star back at the Mine.

[110] Either party could have sought to place evidence before the Commission in relation to the position of BMA with respect to Ms Star being given access to the Goonyella Riverside Mine site in the event that reinstatement was ordered. Neither party did so. I have reservations about the appropriateness of reinstatement as a remedy. Reinstatement will put Ms Star back in the position she was in prior to her dismissal with all of its attendant circumstances. That position was that BMA had issued a directive to WorkPac as her employer that she was to be removed from the Goonyella Riverside Mine site. If an order for reinstatement of Ms Star is made, WorkPac has no right to insist that BMA give her access to the Goonyella Riverside Mine site. Further, it does not appear that Ms Star’s employment contract provided for Ms Star to be allocated to a particular crew or to a particular panel of the roster that applies at the Mine.

[111] If BMA refuses to allow Ms Star to return to the site, subject to WorkPac making reasonable attempts to persuade BMA to the contrary, Ms Star may well be in the position of the applicant in Pettifer whereby the refusal of BMA to allow her to access the Goonyella Riverside Mine site results in a dismissal on the ground of incapacity to perform the role or where Ms Star has no option but to accept an alternative role. In short, while I understand that Ms Star has a strong desire to return to her former position at the Goonyella Riverside Mine, there is some likelihood that she will be giving up a higher paying position with greater job security for an uncertain outcome which is dependent on a third party which is a stranger to these proceedings and cannot be bound by any order that the Commission as presently constituted makes in relation to reinstatement of Ms Star.

[112] Notwithstanding my reservations, if Ms Star presses reinstatement my provisional view is that an order to that effect should be issued. If Ms Star presses reinstatement, I also consider it appropriate to make an order pursuant to s. 391(2) of the Act to maintain Ms Star’s continuity of employment and the period of her continuous service with WorkPac. In relation to remuneration lost as a result of her dismissal, I am satisfied that Ms Star made reasonable attempts to mitigate her loss. Ms Star found other employment – which is not casual employment and is in receipt of a higher salary than she was paid by WorkPac during the period of her employment at the Goonyella Riverside Mine. The parties agree that Ms Star’s lost income for the purposes of an order for payment of lost remuneration is approximately $4475.00.

[113] I also consider it appropriate if reinstatement is pressed, to make an order under s. 391(3) of the Act that WorkPac pay Ms Star an amount of remuneration lost as a result of her dismissal. Given that there is no evidence of misconduct on the part of Ms Star, I do not intend to reduce the amount of lost remuneration ordered on the ground of misconduct.

[114] I provide Ms Star and her legal representative with an opportunity to consider whether reinstatement is pressed, in light of the views I have expressed in relation to the strong possibility that such an order will be detrimental to Ms Star in the event that WorkPac cannot persuade BMA to reinstate Ms Star’s access to the Goonyella Riverside Mine Site. I also provide the parties with an opportunity to have discussions, with the assistance of a member of the Commission if this is thought to be appropriate, to attempt to resolve the matter.

[115] Ms Star is to provide confirmation of whether she maintains her position in relation to seeking reinstatement by Tuesday 4 September 2018.


DEPUTY PRESIDENT

Appearances:

Mr J Kennedy of Hall Payne Lawyers for Ms Star.

Mr M Procter of Clarke Kann Lawyers for WorkPac.

Hearing details:

2018.

19 & 20 April.

Mackay.

 1   Exhibit A1 Statement of Kimberley Star dated 11 February 2018; Exhibit A2 Reply Statement of Kimberley Star dated 17 April 2018

 2   Exhibit A3 Statement of Peter Thomas dated 9 February 2018.

 3   Exhibit A4 Statement of Carl Schmidt dated 9 February 2018.

 4   Exhibit A5 Statement of Brett Hazeldine dated 9 February 2018.

 5   Exhibit R2 Statement of Nicole Gray dated 22 February 2018.

 6   Exhibit R4 Statement of Kirsty Anne Roome dated 22 February 2018.

 7   Exhibit R5 Statement of Chloe Nicole Haynes dated 22 February 2018.

 8   Exhibit R6 Statement of Darian Boyd Lawson dated 22 February 2018; Exhibit R7 Statement of Darian Boyd Lawson dated 11 April 2018.

 9   Exhibit R7 Supplementary Statement of Darian Lloyd Lawson Annexure 1.

 10   Exhibit R2 Witness Statement of Nicole Gray Annexure 2.

 11   Exhibit R2 Witness Statement of Nicole Gray Annexure 2.

 12   Exhibit R2 Witness Statement of Nicole Gray Annexure 3.

 13   Exhibit R2 Witness Statement of Nicole Gray Annexure 4.

 14   Transcript of proceedings 19 April 2018 at PN446-451.

 15   Ibid at 2 at annexure KS-1

 16   Transcript 19 April 2018 at PN215-220.

 17   Ibid at 1 at paragraph 22.

 18   Transcript 19 April 2018 at PN540-544

 19   Exhibit A6 Email chain between Ms Gray and Ms Deanstruck

 20   Transcript 19 April 2018 PN501-505

 21   Exhibit R2 Statement of Nicole Gray at paragraph 21.

 22   Transcript 19 April 2018 PN511

 23   Ibid PN532-533.

 24   Exhibit R3 page 3.

 25   Transcript 19 April 2018 at PN460–464

 26   Exhibit R3 Table of Alternative Assignments Offered to Applicant

 27   Transcript 19 April 2018 at PN 425.

 28   Transcript 19 April 2018 at PN437-438.

 29   Ibid PN517-522.

 30   Transcript 19 April 2018 at PN1012 – 1020.

 31   Exhibit A3 Statement of Peter Thomas, paragraph 11.

 32   Ibid PN148; Exhibit R1.

 33   (1995) 62 IR 2000 at [205] – [206].

 34   [2017] FWCFB 5162.

35 Selverchandron v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

36 Rode v Burwood Mitsubishi Print R4471 at [90] per Ross VP, Polites SDP, Foggo C.

37 Miller v University of NSW [2003] FCAFC 180 at pn 13, 14 August 2003, per Gray J.

 38   [1999] 94 FCR 561.

39 Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410 at 5; Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201 at 204.

 40   MM Cables (A Division of Metal Manufacturers Limited) v Zammit Print S8106; Wilson v Australian Taxation Office PR910942.

 41   (2016) 261 IR 439.

 42   Ibid at 448.

 43   [2016] FWC 925.

 44   [2016] FWCFB 5243 at [19].

 45   Kool v Adecco Industrial Pty Ltd T/A Adecco [2016] FWC 925.

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