Fair Work Commission considers who is the ‘employer’ under a labour hire agreement and minimum period of ‘employment’ for the purpose of an unfair dismissal claim Mulipola v Department of Veterans’ Affairs & Hays Specialist Recruitment (Australia) Pty Limited [2022] FWC 2033

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By Laura Sowden Partner and David Cooper Associate

The Facts

Mr Mulipola signed a casual contract of employment with labour hire supplier Hays Specialist Recruitment (Australia) Pty Limited (Hays). Pursuant to that casual contract he performed a casual assignment with the Department of Health between 25 March to 29 June 2021 (a period of approximately 3 months).

He then performed a separate employment engagement with a different labour hire agency, before being offered further casual agreement by Hays with the Department of Veterans’ Affairs (the DVA).

The assignment with the DVA commenced 21 March 2022 and ceased 9 May 2022 (a period of 7 weeks and 1 day). The assignment with the DVA ceased after the DVA raised performance and attendance concerns with Hays.

The Claim

Mr Mulipola sought a remedy for unfair dismissal under s 394 of the Fair Work Act 2009 (Cth) in the Fair Work Commission against both the DVA and Hays.

Mr Mulipola contended that he had been jointly employed by the DVA and Hays, or alternatively, that the DVA was liable as an accessory for being involved in Hay’s termination of his employment.

He argued that his employment was continuous from the date he signed the contract with Hays, or alternatively that the combined assignment with the Department of Health and the DVA met the minimum employment period.

The DVA objected to the claim on the basis that it was not Mulipola’s employer, and even if it were Mulipola’s employer, he had not completed the minimum period of employment required to bring an unfair dismissal claim.

Hays similarly contended that Mulipola had not completed the minimum period of employment, and further argued that it had not dismissed Mulipola, but had brought his casual assignment to an end.

The Decision

The Commission rejected Mr Mulipola’s claim of joint employment and determined that Mr Mulipola’s evidence was factually insufficient to establish that a contract of employment had been formed between Mr Mulipola and the DVA.

The Commission found Mr Mulipola was employed by Hays only and the period of employment with Hays was not continuous from the date of his contract with Hays, but was broken by long periods of no work, a lack of expectation for further work between Mr Mulipola and Hays, and unconnected engagements.

The Commission also found that even where the employment was continuous, the combined length of the casual engagements within that period did not aggregate to the minimum period of employment required. This was because the period of employment at the DVA did not commence on 3 February 2022 when he was offered the assignment with the DVA as Mr Mulipola argued, but on the first day on which he performed work, which was on 21 March 2022. This meant any period of service he alleged with the DVA was only for 7 weeks.

The Commission was also not satisfied Mr Mulipola was a regular and systematic casual in order for the casual engagements to be combined towards a minimum period of employment. The Commissioner concluded that the two engagements, separated by such a long period of no work, without there being any plan or system to the engagements suggested the employment was not regular and systematic, and that the written contract of employment and the way in which he had been engaged was contrary to Mr Mulipola having a reasonable expectation of continued employment.

The Commission accordingly concluded that Mr Mulipola had not served the minimum period of employment required to be protected from unfair dismissal, and accordingly it was not necessary to determine the other jurisdictional objection to finality. The Commission nevertheless expressed significant reservations that Mr Mulipola’s employment had been terminated, or that accessorial liability could arise.

The Commission accordingly dismissed the proceeding.

What You Need To Know

It is always worth being careful in labour hire arrangements. Entering into a labour hire arrangement with a service provider, such as Hays was the case in this instance, will not prevent the end user from becoming involved in proceedings by a former employee (such as Mr Mulipola).

Further in a costs free jurisdiction, defending such proceedings comes at an expense. For organisations and businesses using labour hire, having clear contractual arrangements between it and the labour hire provider is very important as is having a clear understanding between all parties as to who is the employer.

Mills Oakley acted for the DVA.

Insurance

QBE Insurance (Australia) Ltd v Allianz Australia insurance Limited [2020] FCA 589