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March 2021

Sacked labour hire worker reinstated but not to the same site

Sacked labour hire worker reinstated but not to the same site

The Case

UB Pty Ltd T/A Carlton & United Breweries v Chaya Johnson; Chelgrave Contracting Australia Pty Ltd (2021)

Chelgrave Contracting Australia Pty Ltd (Chelgrave) dismissed Mr Johnson, after UB Pty Ltd T/A Carlton & United Breweries (CUB) insisted on his permanent removal from its site following a workplace health and safety incident.

Mr Johnson commenced unfair dismissal proceedings in the Fair Work Commission (FWC) against his employer Chelgrave. At first instance, the FWC found that Mr Johnson had been unfairly dismissed and ordered Chelgrave reinstate him at the CUB site. The FWC indicated Chelgrave should have independently determined the merits of the circumstances giving rise to the incident and also considered redeployment options at other sites.

CUB appealed the decision, given it was a party affected by the decision.

The Verdict

On appeal, the Full Bench of the FWC held that Chelgrave had no contractual ability to require CUB to allow Mr Johnson back on its site and quashed that part of the decision. Chelgrave had not produced the contract between itself and CUB during the first instance hearing, which was critical to the case.

The Full Bench of the FWC also indicated that in matters involving third parties, the FWC should invite the relevant third party to make submissions on the proposed orders.

The Lessons

This case shows the importance of employers using their independent judgement about disciplinary issues when employees are engaged in a labour hire arrangement. It is also important to consider the contractual arrangements between the employer and labour hire users in terms of the ability to remove workers from site and whether reinstatement to that site is contractually possible.

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